Wilson v Police

[2024] NZHC 1990

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000159

[2024] NZHC 1990

BETWEEN

MICHAEL WILSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

18 June 2024

Appearances:

J Olsen for the Appellant

J Gibson for the Respondent

Judgment:

18 July 2024

JUDGMENT OF WALKER J

This judgment was delivered by me on 18 July 2024 at 3 pm Registrar/Deputy Registrar

Solicitors:

J Olsen, Barrister, Auckland
J Gibson, Meredith Connell, Auckland

WILSON v POLICE [2024] NZHC 1990 [18 July 2024]

[1]    Michael Stuart Wilson pleaded guilty to breaching a protection order, 1 and personating police. 2 On 28 March 2024, in Manukau District Court, Judge K Lummis discharged him on the protection order charge but convicted him on the personating charge. 3 He was sentenced to nine months’ supervision, with a special condition to attend a Stopping Violence or Anger Management programme.

[2]    Mr Wilson now appeals the Judge’s dismissal of his application for a discharge without conviction on the personating charge. In the alternative, he appeals his sentence.

[3]The respondent opposes the appeal.

The offending

Breach of a protection order

[4]    Although the appeal relates only to the charge of personation, the whole picture before the District Court is relevant.

[5]    There is a protection order in force against Mr Wilson in favour of his ex-partner - it also includes the pair’s two children. The order has a special communication condition requiring Mr Wilson and his ex-partner to communicate about parenting matters on the “Our Family Wizard” application.

[6]    On 17 August 2022, Mr Wilson sent his ex-partner two direct messages on that platform. Both were abusive; the second message particularly so. That resulted in the charge of breach of a protection order.

Personating police

[7]    The complainant lives on a property with a shared driveway. Mr Wilson owns the other property. The complainant had previously approached the occupiers of

1      Family Violence Act 2018, s 103(1) and 112(1)(a); maximum penalty three years’ imprisonment.

2      Policing Act 2008, s 48(1)(a); maximum penalty 12 months’ imprisonment and/or a $15,000 fine.

3      Police v Wilson [2024] NZDC 6958.

Mr Wilson’s property with an invoice for their share of the driveway maintenance cost. That resulted in a dispute between the complainant and the occupiers of that address.

[8]    On 18 August 2022, a day after the breach of the protection order, Mr Wilson left the complainant a voicemail. He identified himself as Constable Stan Shaw from the New Zealand Police. He said that he would be looking to charge the complainant with blackmail and threatening behaviour.

[9]    When the complainant spoke to the “Police Crime Reporting Line” she learned that there were no police constables by that name. She reported the incident to the police. That resulted in the charge of personation.4

Decision under appeal

[10]   Mr Wilson sought a discharge without conviction under s 106 of the Sentencing Act 2002 (the Act).

[11]   At sentencing, the Judge raised issues regarding the breach of protection order charge and required Mr Wilson to give evidence. It appears that the evidence he gave in the witness box was viewed by the Judge as an attempt to justify his actions in a way that did him no credit and, in some respects lacked credibility.5

[12]   In assessing the gravity of the offending, the Judge considered the delayed guilty pleas, and apparent lack of genuine remorse. On the other side of the ledger, she noted that Mr Wilson had no prior convictions, had engaged with one-on-one counselling, and had completed some 62 hours of community work prior to sentencing.

[13]   She expressed concern that some 10 years after their separation, Mr Wilson still harboured resentment towards his ex-partner. She considered more work remained to be done for him to cope with the stress inherent in a relationship with shared custody over children.

4      Policing Act 2008, s 48(1)(a).

5      Police v Wilson, above n 3 at [5]. The transcript of that evidence was not placed before me on appeal.

[14]   Standing back, and considering the two charges faced by Mr Wilson together, the Judge assessed the gravity of the offending as moderate, or something slightly below that. The essence of the Judge’s reasoning is captured in the following paragraphs of the judgment:6

[24]      In my view, it is very telling that Parliament has set that maximum penalty for a breach of protection order at a higher level than for a charge of assault on a person in a family relationship. So, for an actual assault, the maximum penalty is two years’ imprisonment. That recognises that we have a greater understanding of family harm and psychological abuse that we have had in the past and recognising that it can be equally damaging as physical abuse. As was commented by O’Gorman J recently in [Tiller v R] offending will be regarded as serious when it is persistent and repetitive or to reflect the degree of harm caused to the victim including levels of distress. Now, I am not suggesting that there is anything other than a one-off incident here but the victim impact statement does show that it has still take (sic) a considerable toll.

[25]      Balancing the aggravating and mitigating features and having regard to the fact that I am dealing with two separate offences, not simply one, against two separate victims, in my view the appropriate overall gravity is moderate or something slightly below that, taking into account all of the positive steps you have taken and actions you have done to seek to make amends.

[15]   The Judge then turned to consider the potential direct and indirect consequences of a conviction. Those consequences included potential detriment to Mr Wilson’s company; limitations on his ability to be involved with certain volunteer organisations and school basketball coaching. Members of these organisations filed material in support of Mr Wilson. Mr Wilson also deposed that there would be potential repercussions on his ability to travel and re-register as a teacher.

[16]   The Judge concluded that there needed to be a conviction in this case. She discharged Mr Wilson on the protection order charge but convicted him on the personation charge. She imposed a short-term sentence of supervision on the personation charge, with a special condition that Mr Wilson attend an assessment for an anger management or violence programme as deemed appropriate by the probation officer.

6      Police v Wilson, above n 3. Footnote omitted.

Grounds of appeal

As to conviction

[17]   Mr Wilson argues that the Judge erred by considering the gravity of the overall offending, rather than the gravity of each separate charge and failing to give sufficient weight to the relevant mitigating factors in his favour.

[18]   Mr Olsen, for Mr Wilson, submits that once the gravity of the relevant charges is properly assessed, the identified adverse consequences are out of all proportion to the gravity of the personating offending. He characterises the offending as a lapse in judgment brought about by emotional stress and emphasised Mr Wilson’s remorse and undertaking of therapy to “take stock of his behaviour”.

[19]   Mr Gibson, for the respondent, submits that the Judge correctly assessed the culpability of the offending as a whole and its gravity. He submits that the identified adverse consequences are no more than speculative and ordinary.

As to Sentence

[20]   Mr Olsen submits that the sole reason for imposing the sentence of supervision was to require Mr Wilson to address the behaviour that caused him to breach the protection order. Given Mr Wilson was discharged without conviction on that charge, the sentence imposed should have related to the personating charge.

[21]   Mr Gibson maintains that despite granting a discharge without conviction, the Judge was entitled to make any order she considered necessary in sentencing for the remaining conviction. In explanation, he links the two sets of offending as related, both in time and because the resentment over parenting issues was causative of the ill-judged actions.

Preliminary point

[22]   The respondent sought to produce the victim impact statement of the complainant on the personation charge. This had not been before the sentencing

Judge. Mr Gibson submits that it is relevant to the gravity of the offending. Mr Olson objects. He submits that unless there is an error in the sentence resulting in this Court imposing a different sentence, there is no jurisdiction to receive the victim impact statement under the Victim’s Rights Act 2002. He submits alternatively that it is fresh evidence requiring leave.

[23]   I take the view that the victim impact statement is new information but is not evidence.7 It ought to have been made available at the sentencing but was not. I propose to treat it as analogous to fresh evidence which requires leave to adduce.8 I consider it may be adduced in the interests of justice but add that, in my assessment, it does not add materially to the exercise facing this Court.9

Statutory regime

[24]   The Court must not discharge an offender without conviction unless it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.10

[25]   It is well settled that this assessment involves a three-stage test.11 First, when considering the gravity of the offence, the Court should consider all aggravating and mitigating factors relating to the offence and the offender. Secondly, the Court must consider the direct and indirect consequences of a conviction and whether those consequences are out of all proportion to the gravity of the offence. The Court must be satisfied that there is a real and appreciable risk that such consequences could occur.12 Finally, if they are out of all proportion, the Court must still consider whether it should exercise its residual discretion to grant a discharge although it would be rare for the Court not to exercise its residual discretion if the preconditions are satisfied.

7      Victims’ Rights Act 2002, s 17AA(2).

8      Criminal Procedure Rules 2012, r 8.8.

9      Jeffries v Police [2019] NZHC 2702 at [7].

10     Sentencing Act 2002, s 107.

11     Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27].

12     DC (CA47/2013) v R [2013] NZCA 255 at [43].

[26]   An appeal against a refusal to discharge without conviction is an appeal against both conviction and sentence.13

[27]   To the extent that the appeal relates to the court's weighing of consequences of conviction against gravity of offending, the appeal proceeds by way of rehearing. The appellate court makes its own assessment of whether the criteria for discharge without conviction are met.14 Unless satisfied that a miscarriage of justice has occurred, this Court must dismiss the appeal.15 In the present context a miscarriage of justice means a material error or that the Judge erred in applying the principles for discharging an offender without conviction.16

[28]   The sentence appeal requires the appellant to demonstrate that there was a material error in the sentence imposed and that a different sentence should be imposed.17 If the sentence is manifestly excessive, it follows that there is a material error.

Determination

[29]   The first issue is whether the Judge was entitled to assess the culpability overall by reference to both charges.

[30]   The two charges related to different kinds of offences however both manifested similarly immature behaviours. That common underlying thread, the fact that they occurred so close in time and stemmed from the same personal distress and frustration on Mr Wilson’s part, means that the Judge was entitled to view them collectively to assess gravity in totality.18 It was also open to the Judge to discharge the appellant on one charge and sentence him on another.

13     Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]; Ovtcharenko v Police

[2017] NZCA 65 at [5].

14     Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141; R v Hughes

[2008] NZCA 546, [2009] 3 NZLR 222 at [11].

15     Criminal Procedure Act 2011, s 232(3).

16     Jackson v R, above n 16, at [12].

17     Criminal Procedure Act 2011, s 250.

18     New Zealand Police v Paki [2014] NZHC 3112 at [24]–[26].

[31]   However, I assess the collective offending as low rather than “moderate or slightly below” as held by the District Court Judge because of relevant positive mitigating factors.19 In no order, those mitigating factors are:

(a)Although the nature of the offence of personating a police officer is troubling, the sentence starting point for the personation charge is a fine and the focus must be on the circumstances rather than the nature of the charge.20

(b)The complainant appeared to be suspicious of the caller and investigated quickly.

(c)Mr Wilson entered early guilty pleas – close to the first available opportunity after taking time to learn of all the implications of the plea.

(d)Mr Wilson has undertaken significant rehabilitative work of his own accord.

(e)Mr Wilson undertook voluntary work in the community prior to sentencing with two organisations which address accountability and deterrence (and he has a track record of community work).

(f)The messages to his ex-partner showed poor judgment and control in a difficult situation but he addressed that (and continues to do so) with counselling intervention.

(g)The emotional harm which the Judge reported based on the ex-partner’s victim impact statement speaks of “behaviour” more generally;

(h)Psychological harm caused by a breach of a protection order is an important consideration but here the two messages, while insulting, did

19 Mathieson v Police [2019] NZCA 406 at [16].

20 The charge has a maximum penalty  of  12  months’  imprisonment  and/or  a  $15,000  fine.  Section 13 of the Sentencing Act 2002 provides that a fine is the presumptively appropriate sentence; displaced only by one of the factors listed in s 13. This is not a case in which any of those factors are applicable.

not involve threats, or persistent or repetitive offending unlike the referenced case of Tiller v R.21

(i)Mr Wilson, at the age of 43, has no previous convictions.

[32]   The second issue to be determined is whether the identified adverse consequences are out of all proportion to the gravity of the personating offending.

[33]   Mr Wilson’s concerns about the impact of a conviction on his digital and television buying agency are real. He deposes that his small business operates in a competitive environment and that the media industry in New Zealand is small and tight knit. News of his conviction will travel fast with the appreciable risk that businesses would not want to risk their reputations by associating with his company.

[34]The Judge dealt with this aspect as follows:22

[29]      It is always difficult for a court when faced with these types of applications where evidence contains these very broad statements and there has not been any testing of the evidence. This is not a case where I have evidence of work requiring conviction checks to be undertaken before certain contracts can be signed or maintained. It is something more speculative, that if people were to find out these things may happen….

[30]      The Police make the point that it is in the public interest for potential clients to be aware of your behaviour and to make their own assessment as to whether they wish to enter into business with you. That is probably particularly true when you look at the personation charge. That you have been willing to pick up a phone and hold yourself out to be a police officer may be something that may be of interest when a business is considering your honesty and integrity and making an assessment as to whether they want to do business with you. If that is the way you act in stressful situations is that something that a business partner should know?

[35]   The Judge went on to conclude that since it is likely Mr Wilson has built strong business connections it is probable others in his close business circles would stand by him as the deponent he put forward did.

[36]   I agree with Mr Olsen that the affidavit provided by an associate in the industry does not undermine Mr Wilson’s essential concerns about the impact on his business

21     Tiller v R [2023] NZHC 1050.

22     Police v Wilson, above n 3.

and customer base. Therefore, to this extent I find that the Judge erred. The fact that the deponent was prepared to provide an affidavit for Mr Wilson does not mean that others in the industry would stand by him. Further, Mr Wilson deposes that the business relies on customers; it is a relatively fledging business, and the issue is not holding onto relationships he has already built up but acquiring new customers.

[37]   I am satisfied that there is a real and appreciable risk of deleterious impact on his business.23

[38]   Mr Wilson also has concerns about his ongoing association with an organisation called the Hoop Club Thailand. This organisation provides basketball coaching for young people in Thailand and helps students secure scholarships to the United States. Mr Wilson is a director and shareholder of the organisation. I note the District Court heard that Mr Wilson’s advice and leadership has been invaluable in developing the success of the organisation.24 The managing director of the Hoop Club confirms that a criminal conviction would mean having to terminate their association with Mr Wilson.

[39]   Relatedly, Mr Wilson is a volunteer basketball coach with a local school. He describes this as a hands-on coaching role to give back to the community. He deposes that the principal of the school has advised that he will have to cease coaching if he has a conviction. The principal confirms this in her affidavit provided to the Court.

[40]   Other factors relied on by Mr Wilson such as the impact on his future ability to re-register as a teacher and impact on future travel to the United States do not in my view add to the analysis. Although there is evidence of difficulties which would arise from a conviction, they are much more remote and may or may not come to fruition.

[41]   I see the essential question to be therefore whether those direct and indirect consequences of conviction on Mr Wilson’s business and community work are out of all proportion to the gravity of the offence.

23     DC (CA 47/2013) v R [2013] NZCA 255 at [43].

24     Police v Wilson, above n 3.

[42]   It is important that volunteer organisations, especially those working with children, can rely on police checks to assess suitability. However, the circumstances and nature of this offending is such that it is not the kind of offending that a prospective employer needs to know. Mr Wilson’s commitment to the rehabilitative steps he undertook before sentencing significantly reduces the need that these events be brought to the attention of anyone proposing to appoint him as a basketball coach.

[43]   In terms of proportionality, I have concluded by a fine margin that these consequences would be out of all proportion to the gravity of the offending which I have assessed as low.

[44]   I find support for my evaluation in the fact that Mr Wilson has no prior convictions. It seems that the offending is out of character. He has sought some rehabilitation and voluntarily completed 62 hours of community work. Having satisfied me as to the threshold I find no reason not to exercise the Court’s discretion to grant a discharge.

[45]   In view of my conclusion, it is unnecessary to discuss the alternative sentence appeal.

Result

[46]   Accordingly, I allow the conviction appeal, set aside Mr Wilson’s conviction, and discharge him without conviction on the charge of personating a police officer.

............................................................

Walker J