Wilson v Police

[2019] NZHC 1252

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2018-441-20

[2019] NZHC 1252

BETWEEN

BRENT DUNCAN WILSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	14 May 2019
Appearances:	M J Phelps for Appellant F Cleary for Respondent
Judgment:	5 June 2019

JUDGMENT OF GRICE J

Introduction

[1]    On 21 May 2018 Mr Wilson appeared before the Napier District Court on two charges of assault with intent to injure.1 Mr Wilson had pleaded not guilty to the charges. Later, although it is unclear when, the charges were amended to the lesser charge of assaulting a child under 14 years of age.2 The Judge found the charges were proved.3 On 22 June 2018, the Judge refused Mr Wilson’s application for a discharge without conviction and instead convicted and discharged him.4

[2]Mr Wilson appeals that decision on the basis:

(a)The Judge erred in finding the charges were proved; and/or

1      Crimes Act 1961, s 189(2); maximum penalty of five years’ imprisonment.

2      Section 194(1)(a); maximum penalty of two years’ imprisonment.

3      Police v Wilson DC Hastings CRI-2017-020-003273, 21 May 2018 [Proof Decision].

4      Police v Wilson [2018] NZDC 12739 [Discharge Decision].

WILSON v NEW ZEALAND POLICE [2019] NZHC 1252 [5 June 2019]

(b)The Judge erred in declining to discharge Mr Wilson without conviction.

[3]I will address each ground in turn.

Background

Factual background

[4]    On the morning of 22 October 2017 Mr Wilson was at the breakfast table with his then partner and her child. They were having breakfast together. The complainant child left the table to put away a book. He said he was also upset. The complainant went to his room. His mother reported that he was being rude to Mr Wilson. The complainant was told to come back to the table by his mother, but he ignored that request. Mr Wilson asked the child to come back from his room. The complainant ignored that request too. Mr Wilson entered the complainant’s bedroom and asked the complainant to come back to the table, but he was ignored.

[5]    Mr Wilson then grabbed the complainant’s arm to “escort” him to the kitchen table. The complainant was upset and called Mr Wilson a “fucking whore”. It was suggested Mr Wilson leave the house and he did. Following this incident, the mother grabbed the child by the wrists to make him go to church.

[6]    Following this incident the complainant complained of a sore arm. After church that day he was taken to the hospital for attention. There were initially fears there was a spiral fracture, but this was not borne out. On examination there was no bruising or swelling.

[7]    The second charge arose two years earlier. Sometime between 1 October and 30 November 2015, in the early hours of the morning (around 1 am), the complainant banged on Mr Wilson and his then partner’s door. The child had been in the habit of doing his. The complainant entered their bedroom and was rude to them. The complainant was then escorted back into his bedroom. He started to scream loudly in the hallway. Mr Wilson put the complainant on the bed and put his hand over his mouth to stop him screaming. Mr Wilson put his hand over the child’s mouth just as

the child finished screaming, so he did not have much breath. The complainant said that because Mr Wilson had big hands they also covered the nose. Mr Wilson said that his hands did not cover his nose and he could hear the complainant continuing to try to scream. Mr Wilson kept his hand over the complainant’s mouth for around five seconds and removed it once the child had stopped screaming.

District Court decision as to proof

[8]    In his decision, the Judge noted at the outset that the charges had been amended to the lesser charge of assaulting a child. Assault, he noted, was the intentional application of force by one person to the body of another, and no great force was necessary, just that it be deliberate and unjustified.

[9]    The Judge then outlined the “parental control” justification to assault. This defence provides as follows:5

59       Parental control

(1)Every parent of a child and every person in the place of a parent of the child is justified in using force if the force used is reasonable in the circumstances and is for the purpose of—

(a)preventing or minimising harm to the child or another person; or

(b)preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence; or

(c)preventing the child from engaging or continuing to engage in offensive or disruptive behaviour; or

(d)performing the normal daily tasks that are incidental to good care and parenting.

(2)Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.

(3)Subsection (2) prevails over subsection (1).

(4)To avoid doubt, it is affirmed that the Police have the discretion not to prosecute complaints against a parent of a child or person in the place of a parent of a child in relation to an offence involving the use of force against a child, where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.

5      Crimes Act, s 59 (emphasis added).

[10]   The Judge noted that this provision provides “a matter of justification or excuse in circumstances where a measure of force which would otherwise constitute an assault, greater or lesser, involves a child under the care of an adult.”6 The Judge expressly noted that once the evidential onus is met by the defence under this provision, the onus moves to the prosecution to disprove or displace this provision beyond reasonable doubt.

[11]   Turning to the two instances of assault identified here, the Judge says that the facts were not heavily disputed, apart from “some picking around the edges”.7

[12]   Having outlined the facts of the two incidents, the Judge turned to consider whether justification had an evidential foundation in the present case. He noted:8

(a)First of all, the purposes of the use of force have been statutorily enumerated:

(i)“To prevent or minimise harm to the child or another person,” that has no application here.

(ii)“To prevent the child from engaging or continuing to engage in conduct that amounts to a criminal offence,” that certainly has no object here.

(iii)“To prevent the child from engaging or continuing to engage in offensive or disruptive behaviour,” there is no suggestion that the child’s behaviour was offensive, except to old-fashioned notions of child conduct. There is an issue whether it was disruptive; in fact, that word, whether by design or chance, entered into Mr Wilson’s own evidence.

(iv)Finally, “force of a reasonable kind is necessary to perform the normal tasks incidental to good care and parenting,” that really adds nothing.

(b)Section 59 then contains a qualification that the use of force for any of those purposes does not justify the purpose of correction of a child.

[13]   As to the breakfast table incident, the Judge noted that he believed the force was effectively correction at best and none of the relevant provisions of s 59 assisted the defence to justify the assault.

6      Proof Decision, above n 3, at [3].

7 At [5].

8 At [11].

[14]   The Judge recognised that Mr Wilson should be allowed the subjective benefit of an assessment of the disruption involved in the screaming incident. Nevertheless, the Judge said that as a person training in childcare Mr Wilson should have had a heightened awareness of the dangers of impeding an airway to silence a child and of the law. The Judge said, a reasonable person in Mr Wilson’s position would have considered other obvious reasonable reactions like shutting the door and “letting him scream it out for himself.”9 The Judge found the defendant did not react reasonably.

[15]   On this basis the Judge found the charges were proved, noting that he wanted Mr Wilson’s evidence typed up and that counsel should carefully consider that evidence before sentencing or making another application.

Discharge decision

[16]   The Judge noted the charges and the facts giving rise to those charges before referring to Mr Wilson’s evidence that he was using a childcare technique he had learnt being: “ask, then tell, then make the child conform with instructions”.10 The Judge noted no justification was made out and that Mr Wilson had little insight into his error.

[17]   Turning to the implications a conviction might have for Mr Wilson’s career as a teacher, the Judge said that as the charges were proved they were going to be available evidence. Therefore, the professional disciplinary or licencing body of teachers would need to consider the question further.

[18]   The Judge did not find that the consequences of conviction would be all out of proportion to the gravity of offending. He said this was not to say the situation with the child was not difficult, just that Mr Wilson should have dealt with it differently.

[19]   The Judge entered the conviction and discharged Mr Wilson. Name suppression was refused.

9      At [17(b)].

10     Discharge Decision, above n 4, at [5].

Appeal against conviction

Law

[20]   Section 232(2)(c) of the Criminal Procedure Act 2011 provides that the High Court must allow an appeal if the Court is satisfied that a “miscarriage of justice has occurred for any reason”.

[21]   A “miscarriage of justice” is defined in s 232(4) as “any error, irregularity, or occurrence in or in relation to or affecting the trial that [either] has created a real risk that the outcome of the trial was affected; or has resulted in an unfair trial or a trial that was a nullity”. As is inherent in the legislative provisions and pointed out by the Supreme Court (in Matenga), not every error or irregularity causes a miscarriage of justice. Importantly, “a miscarriage is more than an inconsequential or immaterial mistake or irregularity”.11

[22]   A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.12 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict is actually unsafe” but that there is a real possibility the verdict would be unsafe.13

[23]   As an appellate Court, there are limitations involved in not seeing or hearing directly from the witnesses.14 However, the Judge must provide a reasoned resolution to significant evidential disputes.15 This Court may come to different views on the evidence before it, but it is for the appellant to show that an error has been made.16

Discussion

[24]   The submissions of Mr Phelps, on behalf of Mr Wilson, were careful and detailed.

11     Matenga v R [2009] NZSC 18 at [30].

12     R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110].

13 At [110].

14     Sullivan v Police HC Auckland CRI-2008-404-152, 2 October 2008 at [30]–[31].

15     Sena v Police [2019] NZSC 55 at [36].

16 At [38].

[25]   Turning first to the breakfast table incident, Mr Phelps submits the Judge failed to appropriately consider Mr Wilson’s subjective belief that the behaviour was meant to stop disruptive behaviour rather than be corrective. He also submits that as only grabbing and dragging was involved in this incident, the force would have been reasonable.

[26]   These matters are insufficient to give rise to a real risk there was a miscarriage of justice. The framing of the submissions advances these arguments as errors of law, but they are challenging the Judge’s factual assessment. It is a factual assessment with which I agree. Counsel argue that in assessing Mr Wilson’s subjective appreciation of his punishment the Judge should have put more weight on the context and that the force used should not have been said to be correctional. The submission is that while the Judge was aware of the context, he gave it less regard than the cross examination. I do not accept counsel’s submission. The argument that Mr Wilson acted to prevent ongoing disruption, in the form of disobedience, fails. The act of “escorting” the child back to the table was clearly corrective. There was no necessity for immediate control, other than correcting the disobedience. A refusal to return to the table is not disruptive in this context.

[27]   Whether or not the behaviour was reasonable does not arise on this analysis. The act was correctional and therefore no justification can exist in relation to this charge. This ground of appeal must fail.

[28]   Mr Wilson’s ground of appeal concerning the charge arising from his actions on the night that he went into the complainant in response to the child’s screaming presents a similar difficulty. Mr Wilson says on this charge the Judge erred in concluding the force used by Mr Wilson was not reasonable in the circumstances to stop the disruptive behaviour. Mr Phelps says that on this occasion the complainant only desisted in screaming when his mouth was covered. The Judge considered that there were other options open to Mr Wilson. Other reasonable techniques were available to stop the behaviour. These included letting the complainant scream it out. Placing a hand over the child’s mouth was not a reasonable course of action in the circumstances. I agree with the Judge and therefore this ground also fails.

[29]   The appeal against conviction fails. I agree with the Judge’s findings. He appropriately found both charges were proved. These matters do not give rise to a real risk of a miscarriage of justice.

Discharge without conviction

Law

[30]   An appeal against the refusal of the District Court to grant a discharge without conviction is a composite appeal against conviction and sentence.17

[31]   Section 106 of the Sentencing Act 2002 provides that if a person who is charged with an offence is found 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”.

[32]The application of s 106 is guided by s 107 which provides as follows:

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.

[33]   The Court of Appeal in R v Hughes said s 107 “provides a gateway through which any discharge without conviction must pass”.18 The Court noted that such an appeal is not an appeal against the discretion of the Court:19

[11]  The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles ... The discretionary power of the court to discharge without conviction under s 106 arises and exists only if the court is satisfied that the s 107 threshold has been met.

[34]   The approach to be adopted by an appeal court in relation to s 107 has been summarised as:20

17     Jackson v R [2016] NZCA 627 at [6]–[16].

18     R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].

19 At [11].

20     Denden v Police [2014] NZHC 1814 (citations omitted).

[28]  An appeal against a refusal to grant a discharge without conviction is by way of rehearing. Normal appeal principles apply as set out in Austin, Nichols & Co Inc v Stichting Lodestar. In Heke v R, the Court of Appeal confirmed the application of an Austin, Nichols approach in criminal appeals where the decision under appeal involves a matter of fact requiring judicial assessment. Later in Paia v R, the Court of Appeal confirmed the approach taken in Heke. Thus, when it comes to a decision under s 107, the appellate court must come to its own view of the merits; the weight the appellate court gives to the original decision is a matter of judgment; and that deference to the assessment of the original decision-maker is not necessary, even where the assessment requires a value judgment. If the appellate court considers that the original decision is wrong, it must act on that opinion.

[35]More recently the Court of Appeal commented on the s 107 test and said:21

[11]              It is settled that a court considering a discharge under s 106 of the Sentencing Act 2002 should follow a three-step process addressing the guidance given in s 107. These steps are:

(a)identification of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender;

(b)identification of the direct and indirect consequences of conviction; and

(c)a determination of whether those consequences are “out of all proportion” to the gravity of the offence.

Only if that threshold is met can the court move to consider the residual discretion under s 106. There must be a “real and appreciable” risk that any given consequence will happen. This standard recognises that the court is assessing the likelihood of something that may happen in the future.

[36]   In terms of the gravity of the offence, the Court of Appeal has summarised the correct approach to take as follows:22

[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 (although, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).

21     Prasad v R [2018] NZCA 537 (citations omitted).

22     Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27] (citations omitted).

[37]   When considering the direct and indirect consequences of conviction on a defendant, the Court of Appeal stated that:23

The Judge does not have to be satisfied that the direct and indirect consequences will inevitably or probably occur; it is sufficient if he or she is satisfied there is a real and appreciable risk of such consequences.

[38]The Court of Appeal recently confirmed in R v Smyth that: 24

[12] It is not enough that the consequences of a conviction outweigh the gravity of the offending. Significantly more is required. The consequences must be out of all proportion to the gravity of the offending before the court has jurisdiction to grant a discharge without conviction.

[39]   Once the Court is satisfied the disproportionality test has been met pursuant to s 107, it may then determine whether to order the discharge.25

Analysis

[40]   Mr Phelps submits the Judge erred as he failed to outline the gravity of the offending leaving this Court to guess at it. He notes the Judge did not have the advantage of the material that is now before this Court and therefore had little go on when considering the application for a discharge without conviction. Mr Phelps asked this Court to approach the matter afresh. I agree that an error was made in the process the Judge adopted to assess the applications. Therefore, the appropriate course is for me to consider the matter afresh and I now follow the appropriate structure for considering an application under s 107.

Identifying gravity of offending

[41]   Under the first step contemplated by s 107 the Court must assess the seriousness of the offence of its type and the aggravating and mitigating factors related to the offence and the offender.

[42]   I do not agree with Mr Wilson’s characterisation of the behaviour as being at the bottom of the range in terms of seriousness. In particular, one of the charges

23     DC (CA47/2013) v R [2013] NZCA 255.

24     R v Smyth [2017] NZCA 530.

25     Z (CA447/2012) v R, above n 22, at [21]; R v Hughes, above n 18, at [8]–[12].

involved impeding the child’s airflow, even if it was for a short time. Mr Phelps, for Mr Wilson, submitted that a hand over the mouth is different to a hand around the throat. That may be the case, but blocking a child’s breath for even a short time would be very distressing for a child who was already upset.

[43]   Mr Phelps pointed to the fact that the Judge had convicted Mr Wilson but did not impose any penalty. He submitted that this indicated that the Judge considered the offending was at the lower end. However, a conviction of itself is a relatively significant penalty, even without anything further. I do not consider this adds much weight to the appeal.

[44]   Turning to the aggravating factors of the offending, in my view putting a hand over a child’s mouth to impede air flow does move the offending above the lowest category of its type. Dragging a child back to the table firmly by the arm might be less serious, but still involved some force and resultant pain. I also note that the offending occurred on two separate occasions albeit separated by two years. Further, the same child was involved in both incidents. In addition, Mr Wilson was in a position of trust, he was a parental figure, there was an age disparity between Mr Wilson and the child, and the complainant was vulnerable.

[45]   In terms of mitigating factors relating to Mr Wilson, Mr Phelps argued that the seriousness of the original charges he originally faced (assault with intent to injure) had precluded the police from exercising their discretion under s 59(4) of the Crimes Act to not prosecute due to the offending being “so inconsequential that there is no public interest in proceeding with the prosecution”. He argues if Mr Wilson had been initially charged with assaulting a child under 12 years of age this discretion would have been available.

[46]   Mr Phelps cites the Court of Appeal decision in DC (CA47/2013) v R in putting that point forward as a factor.26 I note that the circumstances involved in that case were quite different to those in the present. It involved very serious sexual and violence allegations which were eventually admitted to be either made up or could be

26     DC (CA47/2013) v R [2013] NZCA 255.

innocently explained.    The convictions on which discharge was sought involved smacking for the purposes of correction.

[47]   That is not the case here, where there was little dispute about the nature and facts of the offending. It is true that assaulting with intent to injure does have a higher maximum penalty (five years maximum term of imprisonment as compared to two) but that alone is insufficient to render the possibility of the exercise of the discretion by the police under s 59(4) as anything more than speculative.

[48]   I view Mr Wilson’s failure to plead guilty to the offending as neither aggravating or mitigating as the initial charges were substituted during the hearing for lesser ones.

[49]   As a further mitigating factor, Mr Phelps says that had Mr Wilson not been charged with the more serious offence of assault with intent to injure he may have had diversion available to him. The cases cited by Mr Phelps involved minor offending in which the complainant’s views were the only reason diversion was not considered.27 Again whether or not diversion might have been given is a matter of speculation. I do not consider this a mitigating factor for that reason.

[50]   I do consider Mr Wilson’s lack of any prior convictions and his co-operation with the police by undertaking a DVD interview are mitigating factors. However, I do not consider remorse was a mitigating factor as the finding of the Judge was:28

[6]  Mr Wilson’s defence, at the end of the day, amounted to no defence at all but rather a justification for his behaviour based on the mantra [“ask, tell, make”] to which I have referred. It is no justification. And given that it was maintained to the point that it was, Mr Wilson has to be seen as without insight into, or appreciation of, the error into which he has fallen.

[51]I agree with the Judge.

[52]   In conclusion, I view Mr Wilson’s offending as at the low to moderate end of the range for this kind of offending.

27     Masson v Police HC Christchurch A61/01, 26 July 2001; Cook v Police HC Auckland A01/03, 28 February 2003.

28     Discharge Decision, above n 4.

[53]   I now turn to identify the direct and indirect consequences of the conviction for Mr Wilson.

Direct and indirect consequences of conviction

[54]   The main issue which favours the defendant being discharged without conviction is the potential loss of his proposed teaching career. He was on the path to being registered as a teacher. He also has available to him an accounting career if he chooses to pursue a degree in that field.

[55]   Mr Wilson was employed at an early childhood centre. He was immediately suspended without pay when charged with this offending. Mr Phelps points out, and it is not contested by the Crown, that Mr Wilson will not have the opportunity to apply to the Teachers’ Council for registration as these convictions fall within the definition of specified offences. These require the teaching council to cancel the registration and practicing certificate of the person convicted.29 Mr Phelps further submitted that there is scope to apply for an exemption to the Chief Executive of the Ministry of Social Development, however, he submitted that presented a high threshold. The reality he said is that any person who has been convicted of an assault on a child is unlikely to be granted an exemption.30

[56]   The District Court Judge had concluded that any questions arising from a conviction were best left to the Teaching Council. Mr Phelps submitted that the inference here was that the Judge did not want to keep the fact of the conviction from that body. However, Mr Phelps said the Teaching Council was already seized of this matter and the entry of convictions for assault on a child would not allow the Council any discretion.

[57]   In addition, Mr Phelps submitted that there is a real and appreciable risk that these convictions (particularly as they relate to violence) will have an impact on Mr Wilson’s attractiveness to future potential employers in general, even assuming he

29 Children’s Act 2014, s 28.

30 Section 35 provides an exemption may be granted only if the Chief Executive is satisfied that the person would not pose an undue risk to the safety of children if employed or engaged as a care worker.

could not return to teaching. Mr Phelps referred to Police v Taavali where Katz J identified that various Judges of the High Court had previously held the impact of convictions on job applications is a relevant factor, even though such consequences may be “general consequences” likely to flow from a conviction rather than being related to an appellant’s particular circumstances.31 Her Honour accepted the existence of a conviction is likely to render the task of job hunting significantly more difficult for an appellant than if there was no conviction.

[58]   I accept that it is a natural consequence of a conviction that the person convicted will be less attractive to potential or future employers. On its own it is not a weighty consideration. As Gendall J recently said in Herkt v NZ Police:32

[24] The overall consequences of a conviction in this case, as I see it, really come down to a suggested difficulty the appellant may have in finding full- time employment in her preferred area. This, however, is merely the natural result of her offending.

[59]   I agree Mr Wilson is likely to face reasonably significant difficulties in working in the field of teaching again but this is the natural result of his offending. It is also important to note that such a conviction is not a complete bar to occupational registration. While, no application has yet been made to the Chief Executive of the Ministry of Social Development, this remains a course of action open to Mr Wilson.

[60]   This reasoning also extends to Mr Wilson’s concerns about being able to work in the field of accounting if he chooses to follow that career.

[61]   General concerns were also raised about the convictions impacting travel.   Mr Wilson has travelled for study and recreation in the past. In my view, this is a minor factor in the circumstances and while it may add some weight it only very slight.

[62]   Having said all of this, I now turn to consider whether the consequences to Mr Wilson are out of all proportion to the gravity of the offence.

31     Police v Taavali [2012] NZHC 2323.

32     Herkt v NZ Police [2019] NZHC 1014.

[63]   In this case as I have found the seriousness of the offending was low to moderate. The impact on Ms Wilson’s career and job opportunities are a natural consequence of his offending. I do not consider they are out of all proportion to the seriousness of the offences. Had only the breakfast table offence occurred, this decision might be different. However, two such offences involving the same child by a trusted adult who was in a position of trust brings me to the conclusion that the consequences for Mr Wilson are not out of all proportion to the consequences in the circumstances.

[64]   I am not satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

Conclusion

[65]Accordingly, the appeal is dismissed.

Grice J

Solicitors:
Crown Solicitor’s Office, Napier