Z v Police HC Wellington CRI-2008-485-169
[2009] NZHC 1603
•27 March 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2008-485-169
Z
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 24 March 2009
Counsel: N P Bourke for appellant
J Murdoch for respondent
Judgment: 27 March 2009
RESERVED JUDGMENT OF DOBSON J
[1] In November 2008, the appellant pleaded guilty in the District Court at Upper Hutt to a charge of male assaults female. That plea was entered on the basis that he sought a discharge without conviction under s 106 of the Sentencing Act
2002 (the Act). On 18 November 2008, District Court Judge Radford declined the application for a discharge under s 106 of the Act, entered a conviction and ordered that the appellant was to come up for sentence if called upon within nine months.
[2] The appellant now pursues an appeal against conviction and sentence, on the basis that the District Court Judge wrongly applied the direction given in s 107 of the
Z V NEW ZEALAND POLICE HC WN CRI-2008-485-169 27 March 2009
Act as to the circumstances in which a discharge under s 106 of the Act might be ordered.
[3] Section 107 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.
[4] As to the circumstances of the offence, the uncontested Summary of Facts reveals that the appellant and his wife argued over the care of their children, the appellant became angry and slapped his wife across the right side of her face with an open palm. After the assault, the appellant’s wife left the house, initially seeking help from a neighbour, and that led to her reporting the matter to the Upper Hutt Police. The appellant initially denied the assault but subsequently acknowledged that he did slap her face “in absolute frustration”.
[5] The appeal was argued on the basis that the District Court Judge had misapplied the test as to disproportionality required to be made out under s 107 before the Court could order a discharge under s 106. In particular, the approach of the District Court Judge was criticised as inconsistent with the decision of the Court of Appeal in R v Hughes [2008] NZCA 546.
[6] The various threads of Mr Bourke’s argument on claimed misapplication of s 107 can essentially be gathered under two headings. First, that the Judge erred in his approach to the analysis of the relative gravity of the offence, by focusing solely on the nature of the conduct giving rise to the charge, instead of weighing that in light of numerous important mitigating factors said to lessen its relative gravity. Secondly, Mr Bourke inferred that the reasoning of the District Court Judge assumed there was an onus on the appellant to make out the relative seriousness of the adverse consequences that would follow from the entry of a conviction. It was argued that instead, once some appreciable risk of an adverse consequence was identified, then that was sufficient to found an analysis of disproportionality without the appellant being required to establish relatively how likely such adverse consequences were to
indeed follow from the entry of a conviction. A discrete criticism raised was that the Judge in effect abrogated his responsibility under ss 106 and 107 by perceiving there was some public interest in the circumstances of the offending being known to others, who could then make their own decisions on proportionality.
[7] On the first of these challenges, namely the mode of assessing the relative gravity of the offence, the paragraph in the Judge’s sentencing notes which explicitly considers this is as follows:
[8] Turning to the gravity of the offence, I agree that the actions, which you carried out, may on the surface appear to be modest. However, domestic violence is not a minor matter, and assaults wherever they occur are serious. The ordinary sentencing process is equipped to deal with the various situations that come before the Court, and even if the event involved a single blow domestic violence is to be abhorred in all its forms.
[8] Before that paragraph, the Judge had noted that the appellant had never been in trouble before and the information available to him suggested that he was of good character. Thereafter, however, the s 107 consideration of proportionality of adverse consequences of a conviction as against the gravity of the offence is evaluated without the relative gravity perceived by the Judge being affected by mitigating circumstances that could be seen as lessening both the offending, and the circumstances of the offender warranting punishment.
[9] In Hughes, the Court of Appeal observed:
…Application of the disproportionality test under s 107 requires consideration of all relevant circumstances of the offence, the offending and the offender, and the wider interests of the community, including the factors required by the Sentencing Act to be taken into account under ss 7, 8, 9 and
10. Having taken account of those factors, the Judge must determine whether the s 107 test is met and whether it is appropriate that he or she makes an order under s 106 to deal with the offender. [41]
[10] Mr Bourke argued here that the Judge should, in forming his view about the relative gravity of the offence, have taken into account:
• the guilty plea by the appellant at the first opportunity – rendered relevant by s 9(2)(b) of the Act;
• the remorse shown by the appellant – s 9(2)(f) of the Act;
• the appellant’s previous good character and lack of previous convictions
– s 9(2)(g) of the Act;
• the views of the victim – s 8(f) of the Act.
[11] As to the last of these, the appellant’s wife did not want the matter to go any further, and supported a discharge. However, Ms Murdoch made the valid point that, particularly in domestic violence prosecutions, the Court cannot give any primacy to the wishes of the victim as to the appropriate sentence. Subsequent reconciliation, and pragmatic concerns for other impacts on the domestic situation, will understandably affect the attitude conveyed to the Court by victims of domestic violence. The terms of s 8(f) direct that account must be taken of “any information provided to the Court concerning the effect of the offending on the victim;” which does permit an objective analysis of the seriousness of the impact, rather than a subjective reflection of the ultimate outcome sought by the victim.
[12] As for the other mitigating factors, the appellant is entitled to have them taken into account, and I accept that the reasons of the sentencing Judge do not explicitly do so. Ms Murdoch submits that it is implicit that the sentencing Judge had these matters in mind, but in the circumstances the prudent course is to undertake the evaluation again, because of the prospect that the relative gravity of the offence was characterised without credit being given for them.
[13] Giving all realistic credit to the appellant for an early guilty plea, his previous good character and the remorse shown by his unreserved apology to his wife, I am nonetheless not persuaded to take any different view from the Judge, when he characterised even a single blow in the domestic violence context as conduct “to be abhorred in all its forms”. Certainly this is an instance at the least serious end, particularly when these relatively significant mitigating factors are taken into account. However, that evaluation still places the overall circumstances of the offence as a relatively grave one. Any less serious categorisation makes light of an endemic problem in New Zealand society. Not even offenders with the significant
mitigating factors available to this appellant can dismiss such criminality as less than serious.
[14] As to the Judge’s evaluation of the relative seriousness of the adverse consequences predicted to follow from the entry of a conviction, I am not persuaded that the Judge assumed that there was any onus on the appellant to establish that certain adverse consequences would necessarily follow.
[15] Mr Bourke is right that Hughes clearly establishes there is no onus on the offender:
[49] But there is no onus on the offender to establish that the disproportionality test has been met. Rather, in terms of s 107 the requirement is that “the court … is satisfied” it has been met. In R v Leitch [1998] 1 NZLR 420 at 428, this Court said the need to be “satisfied” calls for the exercise of judgment by the court, and that it is inapt to import notions of the burden and standard of proof.
[16] A little later in that judgment, the Court of Appeal emphasised that the sentencing Judge can assess all information that is relevant to the disproportionality analysis ([53]).
[17] Mr Bourke also relied on the decision in Smoothy v Police HC INV CRI-
2008-425-34 17 December 2008 Chisholm J, which recognised that it is enough if the Court is satisfied that there is a real or appreciable risk that the alleged consequences will occur ([21]). That observation is a sensible response to any notion that the relative certainty of any particular adverse consequence flowing from entry of a conviction has to be established to any particular standard. However, it does not prevent the Court, when undertaking the weighing exercise in assessing the relative extent of disproportionality between the gravity of an offence and the seriousness of adverse consequences, from having regard to the relative likelihood that such adverse consequences will in fact ensue. To take an unrelated example, if there was a five percent risk that entry of conviction for a particular offence would bar the convicted person from entry into Australia, then that adverse consequence is to be seen less seriously than if there was a 100 percent certainty of such a ban.
[18] Here, two potential adverse consequences were identified. The first was that the appellant works as a taxi driver and in due course will be required to renew his taxi licence. The process of establishing that he continues to be a “fit and proper person” will involve consideration of the fact of a conviction. A Land Transport Agency fact sheet produced to the District Court included an acknowledgement that the consideration of the “fit and proper person” inquiry covered a range of factors, including the existence of any criminal convictions. It is readily apparent that whether the existence of a conviction is sufficient to lead to an adverse finding that the applicant for a licence is not a fit and proper person will depend entirely on the nature and circumstances of any such conviction.
[19] The second adverse consequence raised on behalf of the appellant is the risk that a conviction might impair the appellant’s prospects of resuming a position as an officer with the Salvation Army. In an affidavit sworn in support of his application for a discharge, the appellant deposed that he and his wife had joined the Salvation Army in Auckland in 2003 and entered a Salvation Army training college in Upper Hutt in 2004. He states that he served in the Salvation Army as a commissioned officer for four years, but both he and his wife resigned their commissions “as a result of some issues”. He expresses the hope that he might some day recommence his role as an officer in the Salvation Army. A senior officer in the Salvation Army provided a letter to Mr Bourke, and that was duly tendered to the District Court Judge. It suggests that termination of the appellant’s and his wife’s commissions with the Salvation Army arose largely out of irrational and inappropriate behaviour on Mrs Z ’s part. There is no evidence to suggest that a conviction for assault in the present circumstances would act as a bar to the appellant rejoining the Salvation Army. The letter from the Salvation Army officer is strongly supportive of the appellant. The concern that the appellant’s aspiration to recommence work with the Salvation Army would be blocked is only reflected in the statement in his own affidavit:
I fear that having a conviction for violence would make me unsuitable to work in a pastoral setting.
[20] I consider the Judge was entitled to treat the risk of both these adverse consequences actually ensuing as being relatively low. There is no reasonable
ground for a concern that, if the appellant is otherwise of good character, a single conviction arising out of an isolated domestic incident would be sufficient to prevent positive confirmation by those vetting him for a taxi licence that he continued to be a fit and proper person. It appears that he has the support of the company through which he undertakes part-time taxi driving work. Similarly, there is no realistic prospect that the appellant’s prospects for recommencing service with the Salvation Army would be prevented by the fact of the conviction now entered against him. The relicensing process will require the appellant to disclose the existence of the charge, irrespective of how it was determined. Similarly, it is very apparent that the Salvation Army knows of the charge. Therefore, later consideration in either context is not going to depend on the fact of conviction, or the circumstances leading to it, being before those parties.
[21] Accordingly, in weighing the extent of disproportionality between the gravity of the offence, and the direct and indirect consequences of entry of a conviction, I concur with the Judge that the assault on his wife, notwithstanding the numerous mitigating factors, was still to be seen as a relatively serious occurrence of criminal conduct. The relatively low chances of the two forms of adverse consequences that the appellant is concerned about subsequently occurring do not make the conviction out of all proportion to the gravity of that offence.
[22] Mr Bourke ran a discrete argument to the effect that the Judge abrogated his responsibilities in undertaking the disproprtionality analysis under s 107 by suggesting the evaluation would, in any event, be undertaken by those responsible for vetting the appellant on the next application for renewal of his taxi licence. The paragraph giving rise to this concern was expressed as follows:
[11] However, there is something further. The right to carry passengers and to service the public does depend on the individual being a fit and proper person. To hide from the authorities or to sweep under the carpet, if you like, an event of violence would be, in my view, to try and deceive the authorities. No doubt those who are responsible for issuing licences will be able to make a proper assessment of the gravity of your offending as far as it affects those authorities. That is a matter for them, and a decision properly to be made by them.
[23] In one sense, this is extraneous to the s 107 analysis. As the Court of Appeal observed in Hughes, s 107 does not itself admit of a discretion. There is a comparative evaluation required, and the outcome of that dictates whether the Court can exercise its power to grant a discharge under s 106:
…The test is the test. Simply, under s 107 the Court must be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence, before it may consider the exercise of the discretion conferred by s 106 to discharge without conviction. [23]
[24] The appellant’s real concern here is that the paragraph appears to recognise the prospect of adverse consequences, without acknowledging the disproportionality between increased difficulties for the appellant in getting renewal of a taxi licence, and the gravity of the offence. The Judge suggested that those responsible for vetting the appellant on any application to renew his taxi licence had a genuine interest in knowing the circumstances of the domestic assault to which he pleaded guilty, and that a s 106 discharge was inappropriate because those authorities ought to be able to form their own judgement on the extent of weight to be given to it. If it was the case that knowledge of this conviction would lead those responsible for licensing to refuse the appellant a renewal of his taxi licence, and if that consequence was out of proportion to the gravity of the offence, then allowing that situation to develop by not recognising disproportionality under s 107 would be contrary to the intention of the section. However, that is not what the Judge has conveyed in the paragraph objected to. Rather, he treats the fact of the conviction as something the licensing authority is entitled to know of in its overall assessment, so that it is as well informed as possible. That does not lead to an inference that the appellant will need to explain the circumstances of the conviction to put it in any less serious light than the Judge perceived the offending to be, in order to obtain a renewal of his licence.
[25] Accordingly, I am satisfied that the Judge correctly declined the application for a discharge under s 106 and the appeal is accordingly dismissed.
Solicitors:
Upper Hutt Law, Upper Hutt for appellant
Crown Solicitor, Wellington for respondent
Dobson J
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