Worthington v The Queen
[2020] NZHC 377
•4 March 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-004-3151
[2020] NZHC 377
BETWEEN JAMIEE LEIGH WORTHINGTON
Appellant
AND
THE QUEEN
Respondent
Hearing: 3 March 2020 Appearances:
G Burns for Appellant
F Sulikosky for Respondent
Judgment:
4 March 2020
JUDGMENT OF WALKER J
This judgment was delivered by me on 4 March 2020 at 12 midday Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
WORTHINGTON v R [2020] NZHC 377 [4 March 2020]
[1] Jaimee Worthington was sentenced in the Waitakere District Court on 13 December 2019 for shoplifting1 and assault with intent to injure.2 She appeals the Court’s decision to decline an application for discharge without conviction pursuant to s 106 of the Sentencing Act 2002.
The offending
[2]The offending relates to two events in late 2018.
[3] First, on 12 September 2018, she shoplifted $259.97 worth of clothing from Rebel Sport in Westgate mall. This is the less significant of the two events.
[4] The main incident occurred on 22 September 2018, when Ms Worthington assaulted her partner. They were in a relationship and have one child together. While her partner was out, Ms Worthington logged into his Tinder account to discover he had been messaging someone. This angered Ms Worthington. She was concerned about her partner’s faithfulness in the relationship, and potentially his sexuality. The victim took Ms Worthington’s mobile phone and went to his vehicle. Ms Worthington then lent through an open window, placed her face close to the victim’s, and struck him several times to the face. A neighbour came and interrupted them. The victim then went back into the house to gather his clothing. When he stepped out of the bedroom, Ms Worthington grabbed him by the head and hit him on the nose, above the eye, and forehead, and bit the victim on his right shoulder. As he tried to leave, the defendant struck him in the head with her cell phone approximately three times.
[5] The victim went to the neighbour’s house and reported the incident to the police.
[6] As a result of the offending, the victim received scratches over his face, had bruising on his left cheek bone and forehead, and had a bite mark on his right shoulder.
1 Crimes Act 1961, ss 219 and 223(d).
2 Section 193.
Approach on Appeal
[7] An appeal against a refusal to grant a discharge is an appeal against conviction and sentence.3 The appeal proceeds on ordinary appellate principles.
[8] The legal principles relevant to an application for a discharge without conviction are well settled. The Court must consider whether the threshold under s 107 of the Sentencing Act has been met. That requires the Court to undertake a three-step analysis, assessing:
(a)the gravity of the offence, taking into account all aggravating and mitigating factors of the offending and offender;
(b)the direct and indirect consequences of a conviction (there must be a “real and appreciable” risk that any given consequence will happen);4 and
(c)whether those consequences are out of all proportion to the gravity of the offence.
[9] The proportionality test under s 107 is a question of fact requiring judicial assessment. Only if the Court is satisfied that the s 107 is met may it then consider whether to exercise the residual discretion under s 106.5
District Court Decision
[10] Ms Worthington pleaded guilty to the two charges. She subsequently applied for a discharge without conviction.
[11] When assessing the gravity of the offending, the Judge classed the offending as “moderately serious”.6 Then, in recognising mitigating factors such as her guilty plea, engagement with restorative justice, and the lack of previous convictions, the
3 Jackson v R [2016] NZCA 627 at [8]-[9] and [16].
4 R v Taulapapa [2018] NZCA 414 at [22].
5 Z (CA447/12) v R [2012] NZCA 599 at [28].
6 New Zealand Police v Worthington [2019] NZDC 25189.
Judge reduced his assessment of the gravity of the offending “down to a low-level instance of a moderate offence”.7
[12] The Judge accepted that convictions for dishonesty and violent offending would preclude her from getting a job in early childhood education. However, he did not consider that this led to anything other than the normal consequences for criminal behaviour. He also considered that it was relevant in a field working with vulnerable people that the offence should be disclosed; that it would not be proper that this information be withheld. As such, he was “not satisfied the consequences of a conviction will be out of all proportion to the gravity of the offence”.8
[13] The Judge also referenced Ms Worthington’s dishonesty offending which “weighed” with him. This was because she had offended within a relatively narrow period of time, which compounded the issues with her application.
[14] Finally, and understandably, the Judge pointed out that the application for discharge had not been advanced other than on the basis of an expressed desire to work in the chosen field.
[15]On this basis, the Judge declined her application.
Grounds of Appeal
[16] Mr Burns, counsel for Ms Worthington, submits that the Judge erred in three central aspects:
(a)First, that the Judge erred in his assessment of the gravity of the offending as being a “low level instance of a moderate offence”.
(b)Second, that insufficient weight was given to personal mitigating factors, and that after these factors were taken into account, the level of offending ought to have been assessed as low.
7 At [14].
8 At [19].
(c)Third, that the Judge erred in finding that the consequences would not be more than the ordinary consequences that flow from having a criminal conviction. The consequences of the conviction would be particularly severe for Ms Worthington, given she wants to pursue a career as an early childhood teacher.
[17]I will address each ground of appeal in turn.
Did the Judge err in assessing the gravity of the offending?
[18] The first step under s 107 is to assess the gravity of the offending. There are two elements to this assessment.9 First, I must look at the offending itself and, second, I must look at all of the circumstances personal to the offender, including the offender’s response to the offending.
The offending itself
[19] Mr Burns, counsel for Ms Worthington, acknowledged that although the assault was a “moderately serious offence”, it was less serious than the Judge considered it to be. Counsel challenged the Judge’s reliance on Nuku and Tamihana v R as misplaced and submitted that there was a failure to take provocation into account. He suggested that the Judge may have been influenced by a perception that Ms Worthington’s conduct had been sparked by a certain predisposition to the transgender community.
[20] I do not accept the criticism of the judgment on this basis. I disagree with Mr Burns that the Judge’s reliance on Nuku and Tamihana was misplaced. On one hand, he is correct that Nuku is not a guideline judgment for the offence of assault with intent to injure under s 193 of the Crimes Act.10 However, in Tamihana v R, the Court held that the principles and bands laid out in Nuku were nonetheless of assistance in sentencing offending under s 193.11 Save for that indication, I accept that Tamihana is a very different level of offending.
9 McMurdock v New Zealand Police [2017] NZHC 1283 at [11].
10 R v Nuku [2012] NZCA 584 at [37].
11 Tamihana v R [2015] NZCA 169 at [16].
[21] With this in mind, I agree that Ms Worthington’s offending falls within band one in the Nuku-type assessment. That is, there are few aggravating features, the level of violence used by Ms Worthington was relatively low, and her culpability is best reflected in a less serious charge than a lengthy sentence of imprisonment.12 Ms Worthington’s assault led to relatively minor and non-lasting injuries for the complainant. It can be regarded as towards the lower end of offending of this type.
[22] Mr Burns’ other submissions are more persuasive. The victim’s own conduct in this instance can be relevant to the offending, although that is rare in an intimate partner relationship. In this case, the victim candidly admitted to:
(a)Taunting Ms Worthington about intensely private and distressful family matters;
(b)Exchanging hurtful insults;
(c)Deliberately “winding her up”; and
(d)Going backwards and forwards in the car and waving her phone at her to prevent Ms Worthington from getting her phone.
[23] This certainly does not mean that Ms Worthington was justified in responding to the victim’s insults with violence, but it provides context to the offending. Ms Worthington was responding to the discovery that her partner was messaging someone else on Tinder. He deliberately aggravated her. This explains what all parties have described as “out of character” offending. It in no way justifies her actions, which I do not condone.
[24] Ultimately, I do not consider the Judge significantly erred in his assessment of the gravity of the offending. He concluded that it was a “low level instance of a moderate offence”. However, I agree with Mr Burns that the conduct of the victim bears on the assessment of the offending. This marginally reduces the gravity of the offending.
12 R v Nuku [2012] NZCA 584 at [38].
Personal Mitigating Factors
[25] I agree with Mr Burns that the Judge placed insufficient weight on personal mitigating factors.
[26] Although recognising that Ms Worthington has successfully completed a number of personal counselling sessions, more weight should have been given to her response to address the offending. This includes a restorative justice program, in which Ms Worthington apologised for her offending, recognised it was wrong, and paid reparation.13 From a policy standpoint, it is important that successful efforts at restorative justice with material evidence of progress and genuine remorse, are taken into account in a meaningful way.
[27] The victim has accepted Ms Worthington’s apology and response.14 Importantly, he has written to the Court and has noted that he would “hate to see this charge put on Jaimee’s personal record … I would like to see this matter put behind us as things have settled”. I recognise that in family violence situations, it is important that the victim’s assurance that the parties have moved on does not outweigh the public interest in holding the offender accountable, denouncing her conduct and ensuring her family is safe, I do not think this is a situation where Ms Worthington poses any risk to the victim again.
[28] The appellant’s lack of offending history is highly relevant. Ms Worthington has no prior convictions. Even the victim describes her actions as “very much out of character”, which I accept.15
[29] Ms Worthington is only 22 years old. Although youth will not always justify leniency, Ms Worthington’s youth and lack of previous convictions mean she has a greater capacity for rehabilitation,16 an aspect I am mindful of encouraging.
13 Sentencing Act 2002, ss s 9(2)(f) and 10.
14 Section 10(2)(b).
15 Section 9(2)(g).
16 Section 9(2)(a).
Consequences of Conviction
[30] The nub of this appeal is whether the Judge was correct to find that the consequences of a criminal conviction on Ms Worthington would be above the normal consequences for such behaviour.
[31] Most significantly, Ms Worthington contends that a conviction would affect her ability to become an early childhood teacher. She informs the court that she intends to enrol in a course to obtain the required qualification. She currently works at the same early childhood centre that her son is enrolled in as a chef.
[32] Mr Burns submits a conviction would be a barrier to her pursuing a career in early childhood. A similar issue was considered by Venning J in McDonnell v New Zealand Police.17 The appellant worked in security. The complainant was intoxicated, and Mr McDonnell was attempting to remove him from the premises. While he was on the ground, he kicked the complainant once in the face. The complainant received minor bruising and skin abrasions. At the time, Mr McDonnell was studying to become a teacher. Venning J held that because the offending was at the lower end in terms of seriousness, and because a conviction would effectively prevent him from pursuing a career in teaching, he was satisfied that the long-term consequences of a conviction would be out of proportion to the gravity of the offence.
[33] The issues that faced Mr McDonnell are very similar to those that are facing Ms Worthington. Her ambition to pursue a career in early childhood distinguishes her case from those such as McMurdock.18 Like Mr McDonnell, Ms Worthington seeks a career in education – where a conviction would likely prevent her from even being considered as a viable candidate for the rest of her life. That is not to say that in every case where an individual who is convicted of an offence should be awarded a discharge without conviction if they hope to pursue a career in education. The seriousness of the offending, the age of the offender, and the relevance of the charges to a potential career working with children will always be relevant. But in this case, I see her future career prospects as an important consequence that should be taken into account.
17 McDonnell v New Zealand Police [2012] NZHC 2480.
18 McMurdock v New Zealand Police [2017] NZHC 1283.
[34] The Crown makes the point that just because she is discharged without conviction does not mean the offending would be hidden from a prospective employer. I am assured by counsel that police vetting would still disclose that she had been discharged without conviction to both charges. This is a matter in respect of which the Judge had no assistance. It is material in my view and I have had the additional benefit of counsel’s submissions on this point.
[35] It has been said that this aspect has two potential consequences.19 The first that it undermines the argument in favour of discharge. The second, that if prospective employers are not made aware of these incidents, it could undermine the safety of vulnerable children. I respectfully take a different view. Disclosure of the offences is important, although as I have found, the incident in question was highly context driven and I see no reason to see Ms Worthington as a risk to the safety of others.
[36] Disclosure of a discharge without conviction gives Ms Worthington a chance in her employment field. At the very least, it would mean Ms Worthington’s application might be considered, and she would be given the opportunity to address any concerns an employer may have head on. Given her young age, and the fact this offending was so out of character, I consider she should be given that chance.
[37] As such, I am persuaded that the long-term consequences of a conviction for both theft and assault with intent to injure would be out of proportion with the gravity of the offence. For completeness, I do not place much weight on the theft charge as it was a minor and isolated. She has made full reparation for the items she stole. This means the s 107 gateway is met. Particularly given her young age, her co-operation with the police, efforts in rehabilitation, lack of previous convictions and her remorse, I am satisfied I should exercise my residual discretion to grant a discharge under s 107.
Summary
[38]The appeal is successful.
[39]I order that Ms Worthington is discharged without conviction. This is because:
19 Parker v New Zealand Police [2016] NZHC 2524 at [29].
(a)A conviction would effectively prevent her from pursuing a career in early childhood education. This would be out of proportion to the gravity of the offending;
(b)In my assessment, the seriousness of the offending is marginally lower than what the Judge considered it to be, and was context driven.
(c)There are substantial personal mitigating factors, including her young age, lack of prior convictions, genuine remorse, her efforts in rehabilitation, and the support of the victim;
(d)I have been assisted by submissions as to the disclosure of the offending in any Police vetting procedures, which the District Court did not have.
[40] I hope that Ms Worthington views this outcome as a decisive turning point for her and her child, and an encouragement to deal with volatile and emotional situations with more maturity.
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Walker J
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