X v Police

[2018] NZHC 2306

PURSUANT TO S 204 OF THE CRIMINAL PROCEDURE ACT 2011, THE NAMES OF THE COMPLAINANTS AND ANY IDENTIFYING DETAILS ARE SUPPRESSED.

PURSUANT TO S 200(f) OF THE CRIMINAL PROCEDURE ACT 2011 THE NAME OF APPELLANT IS SUPPRESSED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2018-404-140

[2018] NZHC 2306

BETWEEN

X

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

3 September 2018

Counsel:

J Mather for Appellant

C Junega for Respondent

Judgment:

4 September 2018

JUDGMENT OF SIMON FRANCE J

[1]        Mr X appeals the refusal of the District Court to grant him a discharge without conviction on two charges of assault with a weapon.1

Facts

[2]        The victims were two of Mr X’s children, aged 10 and 14 at the time. Annoyed with them over their fighting indoors, Mr X made the children go outside and run

1      New Zealand Police v X [2018] NZDC 8470.

X v NZ POLICE [2018] NZHC 2306 [4 September 2018]

around a paddock on which there was a circuit. This is described in the summary of facts as a common punishment.

[3]        Not described as common, on this occasion Mr X stood at the side and hit the children on their back as they ran past, telling them to go faster. The 10 year old boy was hit twice; the 13 year old girl avoided one of the attempted blows. The weapon was a piece of wood – a metre long, and five centimetres in diameter. The children returned to the porch. Mr X told them to remove their muddy clothing, including their pants. The girl refused and ran off. Mr X threw the wood at her, hitting her on the arm.

[4]        Mr X pleaded guilty on first appearance. Mr X is the father of nine children, five of whom have left home and are independent. He is 51 years of age with no previous convictions. He is employed and an issue before the District Court and again an appeal is the impact of convictions on his employment.

[5]        The events came to light during Family Court proceedings consequent upon the couple separating. Since then Mr X has undertaken a Man Alive course as part of a Living Without Violence programme. He has also undertaken a Toolbox Parenting course, and separately has been undertaking counselling with Paraclete Ministries.

Decision under appeal

[6]        The District Court Judge assessed the charges as serious, and the particular conduct as falling in the middle grade of assaults. The striking was not hard but caused some pain. Throwing the stick at this daughter caused a welt and a bruise that took a week to heal. The Judge noted s 9A of the Sentencing Act 2002 which specifically makes it an aggravating factor where the violence is against children under the age of 14.

[7]        In terms of the offending, other matters noted were that the children were home schooled in a rural environment with little access to persons to whom they could turn. They were therefore more vulnerable than normal, and there was a moderate breach of trust. Looking at factors personal to the defendant there was a very early guilty

plea, efforts and rehabilitation and previous good character. Overall, the gravity of the offending was assessed as moderate.

[8]        In terms of consequences, the Court determined that there was no real risk of loss of employment. This involved consideration by the Court of the terms of Mr X’s employment contract, including its definition of serious misconduct. The Court concluded the offending would not be regarded as serious misconduct, nor could the offending bring the company into disrepute. Travel, a necessary part of the job, would be inhibited but conviction would not be an absolute barrier. The consequences were assessed as not being out of all proportion to the gravity of the offending.

Appeal

[9]        The focus on appeal is on the employment issue. It has become somewhat of a never-ending circle. The employer has initiated disciplinary proceedings but declines to resolve them until the appeal process is complete. The appellant wishes the employer’s processes to be completed so that the correct position can be known for the appeal. After successive adjournments, it has been accepted by the appellant that the appeal should proceed. The focus is on the District Court’s assessment of consequences.

[10]      I consider the best one can say is that dismissal is unlikely but cannot be excluded as a possible consequence. The convictions, in terms of their label, are serious, and involving, as they do, children, it cannot be discounted that an employer may see that package as bringing discredit on it. It is far from an inevitable conclusion, but nor would I say it would not happen.

[11]      Likewise, with travel, the convictions are not an absolute bar but will certainly need declaring and most likely require the obtaining of actual visas. If that proves an issue, the job will be impacted but it is impossible to know what will eventuate. Overall, in my view, there is the possibility, but no more than that, that Mr X may lose his employment. Obviously, that would be a significant consequence.

[12]      In terms of the seriousness of the offence I agree with the District Court analysis, although would tend to put the actual assaults somewhat lower down the

spectrum of conduct caught by the offence of assault with a weapon. The elevation of gravity of the offending comes from s 9A which focuses on the age of the victim and instructs the Court to therefore see the offending as more serious. There were two young victims, the use of a piece of wood as a weapon, and a degree of pre-meditation. By that I mean the children were already running “the circuit” and Mr X had deliberately to arm himself with the wood, go to the scene, and decide to hit them. The throwing of the wood at his daughter was spontaneous in a fit of anger, but the earlier assaults were not.

[13]      Section 9A was added as a legislative statement of the need to address legitimate societal concern over violence to children. It does not, of course, preclude a discharge with conviction but it inevitably makes it a more difficult test to meet, since the gravity of the offence is thereby elevated.

[14]      Even accepting some risk to current employment, for the reasons given by the District Court I do not consider the consequences would be out of all proportion to this moderately serious offending.

[15]The appeal is dismissed.

Simon France J