Wells v Police
[2016] NZHC 1235
•9 June 2016
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2016-488-9 [2016] NZHC 1235
BETWEEN TEEGAN WELLS
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 7 June 2016 Counsel:
S K Ellis for Appellant
M A Jarman-Taylor for RespondentJudgment:
9 June 2016
JUDGMENT OF DUFFY J
This judgment was delivered by me on 9 June 2016 at pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors:
Crown Solicitor, Whangarei
WELLS v NEW ZEALAND POLICE [2016] NZHC 1235 [9 June 2016]
[1] The appellant, Ms Wells, pleaded guilty and was convicted in the District Court on one charge of assault with intent to injure and sentenced to 40 hours’ community work. The Judge refused Ms Wells’ application for a discharge without conviction. She now appeals against that refusal.
Factual background
[2] Ms Wells is eighteen years old. She is a single mother with a three year old daughter. At about 12:30 am on Sunday 26 April 2015, Ms Wells was at a relative’s birthday party. She walked up to the victim, Ms Pere, kicked her three times on her left leg, and when Ms Pere tried to run away Ms Wells grabbed Ms Pere by the hair, pulled her back and punched her three times in the face. Ms Pere reported soreness to her face and left knee. In explanation Ms Wells said that she had assaulted Ms Pere because she had been causing one of Ms Wells’ cousins, who was Ms Pere’s boyfriend, to try to harm himself. Some time before the birthday party the cousin had tried to hang himself. This provoked a strong reaction from Ms Wells because in
2012 when she was still at secondary school three students at her school had committed suicide within a matter of months, which had been very traumatic for her.
[3] Ms Wells has no previous convictions and has not received Police diversion in the past. She was assessed as being suitable and willing to attend a restorative justice conference, but the victim was unwilling to go through with the conference.
District Court judgment
[4] The application for a discharge without conviction was opposed by the Police. Judge McDonald assessed the gravity of the offending as being “serious” as it involved “two quite separate assaults”, but did note that it occurred in the context of emotional upheaval following the suicides of three young people at Ms Wells’ school.
[5] To support the application for a discharge without conviction Ms Wells had provided the District Court with a letter from the Deputy Director of Arts, Commerce and Applied Sciences at NorthTec where she is presently studying. The
letter confirms that Ms Wells is enrolled in a Bachelor of Applied Social Service at NorthTec and that part of the degree requirements are to complete two fieldwork placements in two social work agencies. The placements require Ms Wells to satisfy the Social Workers Registration Board’s “Fit and Proper” policy which includes consideration of any criminal convictions. The Deputy Director states that if Ms Wells is “convicted of a crime” this will “significantly limit” her ability to gain a placement and complete the programme of study. She further states that a conviction will impact on Ms Wells’ ability to apply for registration with the New Zealand Social Workers Registration Board.
[6] The Judge was also aware that Ms Wells had attended counselling sessions for a month with plans to continue.
[7] The Judge was aware that Ms Wells was in the second year of a social work degree and has a three year old daughter; she lives with whanau and has stable whanau support.
[8] The Judge recognised that the consequence of a conviction was potential disruption to Ms Wells’ study and registration as a social worker. Nonetheless, he decided that any such disruption would not be out of proportion to the offending. He considered that it was often in the public interest for registration bodies to make their decisions with the benefit of all the facts available.
Appellant’s submissions
[9] Ms Wells submits in relation to the first stage of the test, assessing the offending in context, that this offending was not “serious”, as evidenced by the fact that the sentence ultimately imposed was the minimum term of community work available; that the Judge failed to take into account her efforts in obtaining anger management counselling (having had difficulty locating a suitable counsellor in Northland and had the sentencing adjourned on one occasion due to that difficulty); that the Judge failed to take into account the wider interests of the community in not permanently marking the records of young, ambitious Maori women in Northland.
[10] In relation to the second stage of the test, assessing the consequences of the offending, the appellant submits that the Judge wrongly interpreted Whitehouse v Police as authority for the proposition that where a registration board was involved in assessing conduct, it would be wrong to “hide” conduct from such a board;1 that the approach of allowing boards to assess these matters is an inclination rather than a rule; and that the consequences of the conviction are that the appellant will not even
be able to complete her studies without an assessment by the Social Workers’ Registration Board, which is required to approve her for fieldwork placements. As a result, she might not be able to complete her study. If she is able to complete her study, a further assessment will be made when she applies for registration; this may be adversely affected by the Judge’s failure to characterise the offending as being at the lower end of the scale, as noted in Whitehouse, and may be an obstacle to her obtaining registration and employment.
Respondent’s submissions
[11] The respondent submits that the consequences of the offending are proportionate to the seriousness of the offence, in that the appellant has not provided evidence that a conviction will necessarily be a “death sentence” in her career, and governing professional bodies are entitled to assess the seriousness of past conduct when deciding whether a person is suitable to become a professional.
Approach to appeal
[12] This is a first appeal against conviction and sentence under ss 229 and 244 of the Criminal Procedure Act 2011. The statutory threshold under s 232 for an appeal against conviction is that the court on appeal must be satisfied that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred or, in any case, a miscarriage of justice has occurred for any reason.
[13] Section 106 of the Sentencing Act 2002 grants the court a discretion to discharge an offender without conviction. This discretion is subject to the test in
s 107 being satisfied. That test provides:
1 Whitehouse v Police HC Auckland CRI-2010-404-263, 8 June 2011 at [14].
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.
[14] When the s 107 test is met, the court then has a discretionary power to discharge under s 106. However, when the test is satisfied, this will usually result in a discharge.
[15] An appeal against a refusal of discharge is by way of rehearing with the court hearing the appeal making a new assessment in accordance with its own opinion.2
The Court of Appeal in R v Hughes concluded that as the s 107 test was not discretionary, an appeal against the court’s decision on this matter was not an appeal against discretion.3 An appeal against discretion would only arise if the court held that s 107 was satisfied but nonetheless chose not to discharge the offender.
[16] The approach to be followed in applying the s 107 test is set out in Z v R
where Arnold J held:4
...[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...
[17] What this approach requires is that the court must first determine the seriousness of the offence, having regard to both the aggravating and mitigating factors of the offence and also to those factors which apply to the offender. The Court should then determine the direct and indirect consequences of conviction and determine if they are out of all proportion with the offending.
Section 107 analysis
[18] Whilst the Judge referred to two separate assaults it is significant that only one charge was laid. I consider that the conduct that falls within the scope of the offence of assault with intent to injure is the punches to the head. I see the kicks to Ms Pere’s leg and the pulling of her hair as part of the background to the offending.
[19] It is of some significance that Ms Pere attempted to leave the scene and that Ms Wells pulled her back by the hair. Ms Well’s actions in this regard as well as the hair pulling and the earlier kicks to the leg are all aggravating features of the assault with intent to injure.
[20] As regards mitigating factors there is Ms Wells’ age and her previous good character. There is also her youth. In Churchward v R the Court of Appeal recognised the relevance of youth in relation to sentencing.5 Relevant here is the recognition that:6
(a) There are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults.
(b) …
(c) Young people have a greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult.
[21] The Court of Appeal then referred to the England and Wales Sentencing
Guidelines Council which recognised:7
[O]ffending by a young person is frequently a phase which passes fairly rapidly and thus a well balanced reaction is required in order to avoid alienating the young person from society and; criminal convictions at this stage of a person’s life may have a disproportionate impact on the ability of the young person to gain meaningful employment and play a worthwhile role in society.
[22] At [79] to [81] the Court of Appeal discussed the literature available to it regarding the development of the adolescent brain and the recognised neurological factors that “can lead to a reduction in culpability of young people as compared to adults.”
[23] Ms Churchward was 17 years and seven months of age, which the Court of Appeal saw as being “towards the end of the spectrum as regards youth.” Ms Wells is 18 years old, which I consider to be still within the outer range of the youth spectrum. With Ms Wells, not only is there the vulnerability and impulsivity arising from her youth, there is also the added vulnerability resulting from her earlier experience while at secondary school of three of her fellow pupils having committed suicide, and her belief that her cousin had attempted to hang himself as a result of relationship difficulties he was experiencing with the victim. When those individual factors are added to the mix of the recognised susceptibility of young people to act impulsively I consider that in Ms Wells’ case there are strong mitigating factors to explain her offending.
[24] Ms Wells’ counsel submitted that I could gauge some idea of the way the sentencing judge viewed the seriousness of the offending from the level of sentence imposed. In this regard I was referred to Rolinson v Police where Peters J said:8
Having taken into account all relevant matters, the judge came down to a relatively modest sentence. If that were the judge’s assessment of the gravity of the offending, then I am satisfied that the consequences of conviction were out of all proportion. I allow the appeal accordingly.
[25] Here the sentence of 40 hours’ community work that was imposed on Ms Wells is the minimum number of hours of community work that the Sentencing Act permits to be imposed.9 A sentence of community work is at the lower end of the sentencing hierarchy. When such a sentence is for the minimum number of hours it suggests that the sentencing judge must have viewed the gravity of the offending as low. It follows that this is a case where the gravity of the offending is low and
there is a sound explanation (although no excuse) for why Ms Wells behaved as she
did.
8 Rolinson v Police [2016] NZHC 336.
[26] I now turn to consider the direct and indirect consequences of the offending and whether these would be out of all proportion to the gravity of the offence.
[27] It is not necessary for Ms Wells to prove that the consequences she complains of will definitely occur. She does, however, need to establish a real and appreciable risk that the consequences will ensue.10
Employment prospects
[28] It is not unusual for people requesting discharge without conviction to do so on the basis that it will make it harder for them to find employment. In Amstad v Police Whata J held that the consequence that Mr Amstad would be completely barred from fulfilling his aspirations and joining the army was out of all proportion to the relatively serious offending in that case (including the taking of a motor vehicle and drunk driving).11
[29] Similarly, in R v Tahitahi, Allan J considered that the difficulty that Ms Tahitahi would have in finding work was out of all proportion to her offending,12 given particularly the fact that she had been on a benefit seeking work for twelve months.13 The offending involved throwing a rock at her ex-partner’s car window and breaking it as he drove out of the driveway.14 In that judgment Allan J accepted that the risk of difficulty securing employment was a general consequence of a criminal conviction, but held that it was still relevant. In doing so he relied on the decision in Nash v Police where Mallon J observed that general consequences,
including effects on employment, insurance and immigration, could all be weighed in the balance.15
[30] Ms Wells will need to obtain approval not only to register as a social worker, but also at the earlier stage of applying for the placements that she needs to carry out
in order to finish her qualification. The Deputy Director in charge of Ms Wells’ field
10 Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [20]; Chammaa v Police
[215] NZHC 1893 at [53].
11 Amstad v Police HC Auckland CRI-2011-404-161, 6 September 2011 at [28].
12 At [31].
13 At [23].
14 At [4].
15 Nash v Police HC Wellington CRI-2009-485-7, 22 May 2009 at [19].
of study at NorthTec, who must be taken to have knowledge and experience of how a character assessment can effect a person’s chances of gaining fieldwork placements and subsequent registration, has provided information that suggests a conviction will have a detrimental impact on Ms Wells chances of gaining approval from the Social Workers registration Board for both fieldwork placements and registration.
[31] In relation to both the placements and the eventual registration, the responsible governing body is the Social Workers Registration Board and the relevant legislation is the Social Workers Registration Act 2003. The character requirement for registration is that the candidate must be “a fit and proper person to
practise social work”.16 The assessment of fitness is provided for in ss 47-50 of the
Act. The most important criteria are set out in s 47:
47 Fitness to practise social work
(1) The Board may find a person (the subject) is not a fit and proper person to practise social work if, and only if, it is satisfied that there are grounds on which a reasonable person would conclude that the subject is not a fit and proper person to practise social work.
(2) For the purposes of subsection (1), the Board may be satisfied that there are grounds on which a reasonable person would conclude that the subject is not a fit and proper person to practise social work if—
(a) the subject has been convicted, in New Zealand or overseas, of an offence punishable by imprisonment for 3 months or more, and the Board is satisfied that the nature and circumstances of the offence reflect adversely on his or her fitness to practise social work; …
[32] Here the offence carries a maximum sentence of three years’ imprisonment, which suggests to me that it may well be a serious impediment to Ms Wells continuing in her chosen field of study and career.
[33] There is case law which states that registration bodies should be able to consider convictions when deciding whether candidates for the profession are of proper character.17 The case law establishes that that principle applies particularly
where a registration body is able to consider the circumstances of a conviction,
16 Social Workers Registration Act 2003, s 6(b).
17 And also in other circumstances where situational assessments can be made; see for example
Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011.
rather than a conviction acting as a bar on registration and therefore on employment. However, this is not a hard and fast rule. In Vermeulen v Police, Gendall J held:18
[31] I do not accept Mr Tennet's argument that a Court defaults in its duty in some cases “deferring” the determination of the admission to a profession to the professional body. He said that by doing so, the Court effectively rules out a s 106 discharge for defendants wishing to pursue careers in law, accountancy or other professions where “good character” are among the requirements for admission. The Court of Appeal in Police v Roberts made it clear that there was no policy to be applied in every case.
[32] And just as it cannot be that a special category of persons (such as professionals) be created for this purpose, so too conversely, inclusion in such a class does not mean they should be treated any differently from other defendants who seek a discharge.
Discussion
[34] I am satisfied that the offending was mischaracterised by the Judge as being more serious than it actually was. There was no lasting harm, and indeed the low penalty imposed recognises that this was offending which was among the least serious of its kind. The assault occurred in a situation typical of immature decision making. Undoubtedly Ms Wells handled her anger badly. On the other hand she has made significant efforts to address her issues in that regard, and she expressed willingness to go through a restorative justice process.
[35] As to whether the consequences of a conviction would be out of all proportion to the offending, I find the information provided by the Deputy Director of NorthTec to be helpful and to accord with my own assessment of the risk a conviction poses to Ms Wells’ ability to complete her course and to gain registration. I acknowledge that the assessment required under the Social Workers Registration Act involves consideration of all the circumstances rather than there being a blanket exclusion of convicted persons. Nonetheless, the seriousness of the offence both in terms of its nature, which involves intentional violence to the person, and its maximum sentence mean that there is a real and appreciable risk the Board will be unduly influenced by those features, and therefore underestimate the compelling mitigating factors that feature in this case. If this were to occur the likely outcome
would be for the Board to refuse to approve Ms Wells either for placements while
18 Vermeulen v Police HC Wellington CRI-2010-485-141, 11 March 2011.
she is completing her studies or later for registration as a social worker. Such an outcome would be out of all proportion to the seriousness of her offending.
[36] Relevant here also is the recognition in Churchward of the greater capacity of young people for rehabilitation. In addition to her young age Ms Wells is the mother of a three year old child for whom she is the caregiver. Her completion of the social work course and finding employment in this field is the pathway to a better life for her and her child. There is every reason to believe she will have learned from the offending and is at low risk of further offending. If she loses her chance in this regard the consequences of the conviction will be out of all proportion to the gravity of the offending, which I consider to be minimal once placed in its proper context.
[37] The tests under s 107 clearly favour the granting of a discharge. In this case a discharge without conviction is well merited. Accordingly, the discretion under s
106 should be exercised in Ms Wells’ favour.
Result
[38] The appeal is allowed. The conviction imposed in the District Court is set aside.
Duffy J
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