Wewege v Police

[2021] NZHC 92

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-385

[2021] NZHC 92

BETWEEN

MONIQUE WEWEGE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	4 February 2021
Appearances:	S Kim and M S Sweetman for Appellant C P Howard for Respondent
Judgment:	4 February 2021

(ORAL) [FINAL] JUDGMENT OF LANG J

[on appeal against conviction and sentence]

Solicitors:

Kayes Fletcher Walker, Auckland Public Defence Service, Auckland

WEWEGE v NEW ZEALAND POLICE [2021] NZHC 92 [4 February 2021]

[1]    Following a Judge alone trial in the District Court Ms Wewege was found guilty on charges of assault with intent to injure and threatening to kill. She was found not guilty on a charge of strangulation.1

[2]    On 24 November 2020 I allowed Ms Wewege’s appeal against conviction on the charge of threatening to kill. I dismissed the appeal on the charge of assault with intent to injure.2 It is now necessary to reconsider the issue of sentence in light of those decisions. As matters currently stand Ms Wewege is subject to a sentence of supervision for 12 months and she has also been ordered to perform 150 hours community work. I need to review those sentences in light of my own findings regarding the seriousness of the offending and in light of the fact that Ms Wewege has now sought a discharge without conviction.

Application for discharge without conviction

[3]    An application for discharge without conviction is governed by s 106 of the Act, which relevantly provides as follows:

106    Discharge 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.

…

[4]    In applying s 106, the Court must follow the guidance contained in s 107 of the Act. This provides:

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.

1      New Zealand Police v Wewege [2020] NZDC 19161.

2      Wewege v New Zealand Police [2020] NZHC 3117.

[5]    A court considering an application for discharge under s 106 must consider three issues.3 It must first assess the gravity of the offending having regard to the facts of the particular case. This exercise is not restricted to the aggravating and mitigating factors of the offending itself. Factors personal to the offender may also be relevant.4 Next, it must identify the direct and indirect consequences of a conviction being entered. In this context there must be a “real and appreciable” risk that any posited consequence will occur.5 Thirdly, the court must determine whether the consequences of a conviction would be out of all proportion to the gravity of the offending. There is a residual discretion not to grant a discharge but that will rarely be exercised where the statutory criteria have been met.

[6]    An appellate court is required to reach its own view as to whether the direct and indirect consequences are out of all proportion to the gravity of the offending. If it accepts the statutory threshold has been met, the court must determine whether the court at first instance erred in principle when exercising its discretion go grant or refuse to grant a discharge.

Decision

Overall gravity of the offending

[7]    The first issue is the overall gravity of the offending. Several factors are relevant in this context. The first is the circumstances in which the offending occurred. In the present case I am satisfied the offending occurred in the context of a spontaneous argument between Ms Wewege and the complainant. It resulted in the infliction of violence in the form of clawing around the complainant’s eyes. This left no permanent damage to the complainant but resulted in some discomfort to her for a considerable period after the incident giving rise to the charge. As the Crown points out, any violent offending directed towards the eyes is serious because the eyes are a vulnerable part of the body and they are also a vital part of bodily function. Any compromise of the ability of the eyes to provide the function of sight is obviously a serious matter. Having

3      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16] to [17].

4      Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]; DC (CA47/2013) v R [2013]

NZCA 255 at [35].

5      DC (CA47/2013) v R, above n 4, at [43].

said that, I would describe the overall circumstances of the incident giving rise to the conviction as being low to moderate.

[8]    This assessment needs to be viewed in light of the fact that Ms Wewege has no previous convictions. Previous good character will generally reduce the overall culpability of offending. Ms Wewege did not enter guilty pleas to the charges and guilty pleas can further lessen the gravity of the offending. Balanced against that,  Ms Wewege has now succeeded in defending two of the three charges that she originally faced. She is unable, however, to claim a further discount or credit for remorse because quite clearly there is no evidence she is remorseful for the incident that gave rise to the charge. Taking these factors into account I still assess the overall gravity of the offending as being low to moderate.

Direct and indirect consequences of conviction

[9]    The principal consequence of a conviction from Ms Wewege’s perspective is the likely effect a conviction will have on her ability to obtain employment. She lost her job when the COVID-19 pandemic broke out. She has placed evidence before the Court confirming that she has tried on numerous occasions since then to obtain gainful employment in a wide variety of fields. Some of the applications have been unsuccessful for reasons entirely unconnected to the existence of a conviction. It is clear, however, that the prospects of success of at least some of her applications for employment are likely to depend in small or large part on whether or not she ultimately sustains a conviction as a result of the present offending.

[10]   Ms Wewege currently has outstanding applications for employment being considered by a roofing company and a security company. It is difficult to see how the existence of a conviction on the present charge could be of any relevance to the roofing company, particularly once the penalty appropriate for the offending is taken into account. I consider, however, that an entity such as a security company should be entitled to know about the conviction because it could justifiably influence the company’s approach to employing Ms Wewege. The incident giving rise to the charge amounted to a disproportionate response to a perceived slight by the complainant. A

security firm should know that Ms Wewege reacted inappropriately and in a physical way to a slight of that kind.

[11]   I therefore accept that the existence of a conviction is likely to have an impact on Ms Wewege’s prospects of obtaining some forms of employment in the future. However, I consider this to be a natural consequence of the nature of the charge and the nature of certain types of employment to which the conviction is likely to be relevant. I do not consider the likely impact on her ability to obtain employment generally as being out of all proportion to the overall gravity of the offence. Rather, I would describe it as being low to moderate. This means it is proportionate to the overall gravity of the offence.

[12]   That being the case, Ms Wewege has not satisfied the statutory criteria that would permit me to enter a discharge without conviction.

[13]The application for discharge is accordingly dismissed.

The appeal against sentence

[14]   It follows that I must now consider the penalty to be imposed for the offence. Given that the charge of threatening to kill has now been removed it should obviously be lower than that assessed by the Judge. In addition, I do not see what a sentence of supervision would achieve because I do not detect any underlying issues so far as  Ms Weweke is concerned. The offending suggests she may have a tendency to lose her temper and react inappropriately when confronted by what she considers to be rudeness on the part of others. I do not see a sentence of supervision as being necessary to address that issue. She must take the consequences of that particular personality trait as she finds them.

[15]   Similarly, I do not consider a sentence of community work is necessary. Overall, I  consider  the fact of  a conviction to be  sufficient  to demonstrate that   Ms Wewege has failed to meet her responsibilities towards others on one occasion. I am satisfied that the appropriate penalty in this case is that Ms Wewege be convicted and discharged. I quash the sentences of supervision and community work.

Ms Wewege is convicted and discharged on the charge of assault with intent to injure. I make an order accordingly.

Lang J