Williams v Police

[2024] NZHC 3845

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2024-476-23

[2024] NZHC 3845

BETWEEN

KOMENE MEI VICTOR WILLIAMS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

13 December 2024

Appearances:

M L Bonniface for Appellant

C J Mitchelmore and S M H McManus for Respondent

Judgment:

16 December 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 16 December 2024 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

WILLIAMS v NEW ZEALAND POLICE [2024] NZHC 3845 [16 December 2024]

Introduction

[1]    Komene Mei Victor Williams pleaded guilty to indecent assault1 and being in a building unlawfully.2 He sought a discharge without conviction. However, that application was declined and instead, Judge Savage sentenced him to 40 hours community work.3 Mr Williams now appeals this decision.

Facts

[2]The facts were summarised by Judge Savage as follows and are not disputed:

The basic facts are that Mr Williams, when drinking one afternoon in May of this year and got intoxicated before going to town. He met a friend of the victim of his offending, and I note that she was at home because she had been socialising in the afternoon too and had drunk a sufficient amount that she did not feel comfortable to go to town. You followed the friend for a time. You were given a ride by another person and dropped off at the victim’s house. You knocked on the front door but it was locked so you went round and let yourself in a closed but unlocked door and you went in to the victim’s bedroom, where you disrobed down to your underwear and you got into bed with her and attempted to kiss her. Your presence at that house was not invited. It was not welcome and that’s why you were charged.

District Court decision

[3]    In considering the gravity of the offending, the Judge said the offending itself was serious. The appellant entered the victim’s house at night, uninvited, took off his clothes, got into her bed and made advances to her. However, the Judge accepted that the appellant had engaged in a positive restorative justice conference and that reduced the seriousness of the offending.

[4]    The Judge then turned to the consequences of conviction and determined these were speculative, noting that the appellant’s affidavit stated he may not be able to visit Venezuela to see his mother whom he had not contacted for several years and that he was worried about his job, albeit he had the support of his employer, and his job did not appear to be at risk.

1      Crimes Act 1961, s 135; maximum penalty seven years’ imprisonment.

2      Summary Offences Act 1981, s 29(1)(a); maximum penalty three months’ imprisonment or $2000 fine.

3      Police v Williams [2024] NZDC 27228.

[5]    Therefore, on balance, the Judge found that even if he was to accept the submission that the gravity of the offending was reduced by the appellant’s post-offending actions, he was not persuaded that the consequences were out of all proportion to the gravity of the offence and the application was declined.

[6]    The Judge declined an adjournment sought by the appellant’s counsel to seek more information about the consequences of the conviction and sentenced the appellant to 40 hours community work.

Principles on appeal

[7]    The Court may grant a discharge without conviction under s 106 of the Sentencing Act 2002 only if it is satisfied, under s 107, that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.4

[8]    The decision under s 107 involves a matter of fact, requiring judicial assessment. Appeals against the proportionality test under s 107 are by way of rehearing, with the appellate Court making its own assessment of whether the criteria are established.5 If a discharge without conviction should have been granted, then there will have been a material error by the sentencing Judge, or a miscarriage of justice will have occurred for any other reason, and so the appeal against conviction must be allowed.6

Submissions

Appellant’s submissions

[9]    Mr Bonniface, for the appellant, submits that the Court erred in determining the gravity of the offending as serious and the consequences of conviction as speculative. Consequently, he says the Court erred in entering a conviction instead of granting the the appellant’s application for discharge without conviction.

4      Sentencing Act 2002, s 107.

5      H (CA680/11) v R [2012] NZCA 198 at [35]–[36].

6      Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627 at [12].

[10]   Regarding the gravity of the offence, he submits it should have been assessed as low to moderate, noting the “indecency” of the assault resulted from the surrounding circumstances of the offending, as the appellant entered the complainant’s home and bed uninvited, rather than from the act itself — being two attempted kisses between adults. He also submits that while there was no pre-existing intimate relationship, the appellant and complainant were not unknown to each other, and the appellant had previously stayed the night on the couch at her home.

[11]   Turning to the factors mitigating the gravity of offending, Mr Bonniface submits the appellant is young (he is 22 years old), he has no prior convictions, and the offending was out of character, as confirmed by several letters of support. The appellant pleaded guilty at the first opportunity and complied with all bail conditions. He demonstrated remorse at a restorative justice conference, in his affidavit and to the pre-sentence report writer. He also paid the victim an emotional harm payment of

$2000.

[12]   The appellant has also taken steps to address his issues with alcohol by self-referring to the Kensington Centre and the STOP programme, and voluntarily ceasing his own consumption of alcohol. Mr Bonniface submits, in light of the steps taken by the appellant, the gravity of the offending is reduced to low.

[13]   The three key consequences of conviction which are advanced by the appellant are:

(a)he did not believe he could travel to Venezuela to see his mother;

(b)he did not believe he could travel to and work in Australia in the mining industry; and

(c)he was concerned he could lose his current employment and he would have difficulty getting another job.

[14]   Mr Bonniface submits the Court erred in declining an oral application for adjournment to seek further information supporting the consequences of conviction

and in concluding that no submissions had been made as no written submissions were filed when counsel’s intention was to make oral submissions, which was done.

Respondent’s submissions

[15]   Mr Mitchelmore, for the respondent, submits the gravity of the offending was correctly assessed as high, particularly considering the presence of the aggravating features: unlawful presence in a dwelling house, the clear and lasting effect on the victim, extent of harm, and victim’s vulnerability.

[16]   While the offending was opportunistic, Mr Mitchelmore submits the offending is aggravated by the appellant’s behaviours that colour his intentions. While the indecency element of the offending viewed alone may be seen towards the lower end, in the context that it occurred, it was appropriately determined as serious offending. This context was that the appellant followed a couple home asking to be taken to the victim’s address, upon finding the front door locked he messaged her to be let in and, after receiving no reply, found an unlocked back door by which he let himself in and found his way to the victim’s bedroom.

[17]   Taking into account the mitigating features, which are not disputed by the Crown, the gravity of the offending was recognised by the Judge to be reduced.

[18]   Turning to the consequences of conviction, being the impact on the appellant’s employment, the impact on his ability to travel to Venezuela and the impact on his ability to travel to and work in Australia, Mr Mitchelmore submitted these were correctly identified as speculative by the sentencing Judge and were not out of all proportion to the gravity of the offending.

Analysis

[19]   The threshold for a discharge without conviction is high, with the consequences being required to be out of all proportion to the gravity of the offence.7

7      Sentencing Act 2002, s 107.

Gravity of the offence

[20]   I accept that the gravity of the offence itself was appropriately regarded by the District Court Judge as serious, considering the nature of the offending, the breach of privacy and the intrusion by the appellant by entering the complainant’s house, at night while she slept, and getting into her bed after undressing. Furthermore, the impact of the offending on the victim was initially significant, prompting her to move house, with associated expense, because she felt too uncomfortable staying in the house where the offending occurred.

[21]   Turning to the offender, I accept he did everything reasonably possible to mitigate the gravity of offending. In that regard, I note his remorse as shown through his guilty plea and the letter to the court, and his positive engagement with restorative justice, leading to the victim acknowledging that she no longer was fearful of the appellant.

[22]   Contrary to counsel’s submissions, the Judge clearly did acknowledge that the seriousness of the offending was reduced by these steps, although he did not attempt to qualify the reduction. I consider it would have been open to the Judge to assess the overall gravity as low to moderate in light of all these factors. However, the real issue on this appeal is whether the consequences of the offending are out of all proportion to the gravity of the offending.

Consequences of conviction

[23]   First, addressing the impact on foreign travel, the High Court in Brunton v Police stated that a discharge on the grounds that travel will be impeded is unlikely to be successful where the future travel is speculative and not yet planned, and that tentative travel plans carry little weight in a s 107 context.8

[24]   Where the discharge is sought on the basis that a conviction will impede travel to a particular jurisdiction, a court will usually require detailed and reliable evidence. Specifically, the Court would require evidence of whether a conviction must be

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

disclosed, whether the conviction impedes travel by making the applicant prima facie inadmissible, and if the process is otherwise unreasonably difficult and uncertain.9

[25]   Mr Bonniface submits that information about travelling to Venezuela with a criminal conviction is limited due to New Zealand’s lack of diplomatic relations with Venezuela. However, in the absence of any evidence, this Court cannot find that the conviction would result in a real and appreciable risk that the appellant would be unable to travel to Venezuela. This, in addition to the lack of material plans for travel to Venezuela, mean I am unable to place much weight on this submission.

[26]   Regarding travel to Australia, Mr Bonniface submits there is an appreciable risk that an application for a special category or temporary work visa would be rejected on the basis that the appellant is of bad character. I have considered the information provided by counsel, which sets out the circumstances where a visa may be refused on character grounds. While there is a catch-all provision allowing consideration of the “person’s past and present criminal conduct” and “general conduct”, the specific examples are far more serious than the conviction before the court here. For example, it references specific crimes such as those involving child sexual offending, or involving serious international concern or where the applicant has been sentenced to a term of 12 months imprisonment or more. While the appellant will require a visa to travel to or work in Australia, the evidence does not go so far as to suggest his visa application would likely be declined. In any event, the appellant’s travel plans are no more than a possibility with the appellant saying “My dad and I have also talked about travelling to Perth, Australia to work in a mine, which would help me save money to buy a house.”

[27]   In summary, the risks to the appellant’s travel plans are wholly speculative and do not provide sufficient evidence for me to conclude there is a real and appreciable risk of the submitted consequences.

[28]   Turning to employment, I note that while the appellant expresses concerns in his affidavit that he is uncertain of his retention of his current job following conviction, the letter from his employer, Mark Baird, does not support this. In this letter Mr Baird

9      Edwards v R [2015] NZCA 583 at [26].

states his support of the appellant, noting “Komene is a very capable hard worker and has become entrenched in our team over the time he has been an employee” and concludes by saying that “I hope whatever the outcome it gives all involved [a] resolution that leaves them all happy and can move forward with their lives without heavy hearts”. Importantly, there was no indication that the conviction would impact the appellant’s employment or the support he receives from his employer. Further, the appellant’s concern with potential dismissal during a redundancy process would be based on the needs of the company, not the conduct of individual employers, and to make assumptions beyond this was correctly identified as speculative by  the  District Court Judge.

[29]   Mr Bonniface also draws the Court’s attention to the appellant’s concerns with obtaining  future  employment  and  the  impact  on  his  ongoing  apprenticeship.  Mr Bonniface relies on Gaunt v Police to support the submission that a “black mark of a conviction alone is a significant consequence on an otherwise clean record, especially for a young person who does not yet have a foothold in a career”.10 However, unlike Gaunt, where Mr Gaunt had hearing difficulties which contributed to him receiving a limited education and who struggled to find employment, only occasionally finding work in manual occupations, the appellant here is engaged in an ongoing apprenticeship with a supportive employer who has not expressed any indication that a conviction would impact that apprenticeship or his employment. Similarly, in Cook v Police, which was also relied on, the appellant was not yet employed and the conviction was considered to blight his employment prospects.11

[30]   There is also no further information before this Court to suggest that the appellant would face difficulties in obtaining future employment. He has relevant experience, a supportive employer whom, it appears, would provide a strong reference, and where the conviction is relatively minor — as reflected in the appellant’s sentence. Therefore, I am not satisfied that there is a real and appreciable risk to the appellant’s employment, now or in the future.

10     Gaunt v Police [2017] NZCA 590 at [15] (footnote omitted).

11     Cook v Police [2014] NZHC 282.

[31]   While the gravity of the offending, taking into account everything Mr Williams has done to mitigate it, could be assessed as low to moderate, I am still not satisfied that the identified consequences of conviction are out of all proportion to the gravity of the offending.

Sentence appeal

[32]   The appellant initially pursued an appeal against sentence. However, in his written submissions Mr Bonniface acknowledged that appeal was now moot as the sentence had been completed and this aspect of the appeal was not pursued at hearing. In any event, I consider the sentence imposed could not be described as manifestly excessive.12 For the avoidance of doubt, I record that the appeal against sentence is dismissed.

Result

[33]The appeal against conviction and sentence is dismissed.

Solicitors:

JMJ Lawyers Ltd, Timaru Crown Solicitor, Timaru

12     Tutakangahau v R [2014] NZCA 279 at [32]–[35].