IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA186/2020
 [2020] NZCA 397

	
BETWEEN	
THE QUEEN
Appellant	
	
AND	
FERGUS DONALD CLEAVER
Respondent	

Hearing:	
20 July 2020	

Court:	
Clifford, Woolford and Dunningham JJ	

Counsel:	
R K Thomson for Appellant
M J Dyhrberg QC and H G de Groot for Respondent	

Judgment:	
7 September 2020 at 10 am	

JUDGMENT OF THE COURT

A	The application for leave to appeal is granted.
B	The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Woolford J)
[1]	On 13 March 2020, in the Auckland District Court, Fergus Donald Cleaver was discharged without conviction on one charge of injuring with reckless disregard by Judge Field and ordered to pay $10,000 emotional harm reparation to the victim, his former wife.  The Solicitor-General now seeks leave to appeal to this Court against the Judge’s decision to grant a discharge without conviction on the basis that the Judge was plainly wrong in his conclusion that the consequences of a conviction were out of all proportion to the gravity of the offending.
[2]	Leave to appeal was opposed.  It is, however, in the interests of justice to grant leave because of the emotional impact of the offending on the victim.  Leave is granted accordingly.
Factual background
[3]	Following a five-day jury trial in the Auckland District Court between 9 and 13 December 2019, Mr Cleaver was found not guilty of two charges of male assault female and guilty of one charge of injuring with reckless disregard.  
[4]	The Judge found, for the purposes of sentencing, that in the course of an argument Mr Cleaver entered the bedroom occupied by the victim and told her to shut up because she was crying.  While she was lying on the bed, he put one hand over her mouth and the other on her neck and told her to stop crying or he would punch her.  At that, she cried even louder.  Mr Cleaver then punched the victim with a closed fist to her right eye.  The victim got away from Mr Cleaver and fled to a friend’s address.  The victim suffered bruising to her right eye and a broken nose as a result of the punch, although there was some previous surgery to her nose which may have left it somewhat weakened.
District Court decision
[5]	Mr Cleaver was sentenced on 13 March 2020.  After setting out the facts as he found them and the test to be applied when an application is made for a discharge without conviction, the Judge noted the victim’s enormous emotional distress in addition to the physical pain and shock of the punch itself.  He accepted that although there was only one punch, that punch has had a profound effect on her, both physically and mentally.  
[6]	The Judge then assessed the gravity of the offending as moderate.  The punch was to the victim’s head.  She was vulnerable as the violence occurred in the home she shared with Mr Cleaver.  There was also a disparity in size and strength between the victim and Mr Cleaver.  The Judge did, however, reject the Crown’s submission that the punch was not a spontaneous action.  It was an action in the heat of the moment, quite unjustifiable, but nonetheless relatively spontaneous.
[7]	Although Mr Cleaver could not claim credit for a guilty plea, the Judge noted the large number of personal and business references provided to the Court.  Mr Cleaver was, therefore, entitled to credit for his previous good character and the good work that he had done in business and for charity.
[8]	The Judge then turned to the consequences of a conviction for Mr Cleaver.  The Judge did not attribute much weight to any reputational damage.  He noted that Mr Cleaver’s professional body, the New Zealand Institute of Chartered Accountants, had already been told of the charge and could take the Judge’s assessment of the offending as being moderately serious into account.  
[9]	The Judge then noted the post-offence efforts made by Mr Cleaver to rehabilitate himself, including an assessment and sessions with the Man Alive programme, an assessment and sessions with the Community Alcohol and Drug Service, a Reducing Harm course, sessions with a consultant psychologist, Dr Sakdalan, and ongoing counselling with another psychologist, Dr Easden.  The Judge referred to Dr Easden’s opinion that Mr Cleaver could be seen as at very low risk of further offending of this kind.
[10]	As to further consequences of a conviction, the Judge accepted that there would be a significant impact on Mr Cleaver’s practice, although perhaps not as great as he would submit.  But the Judge recorded that he was concerned about the issue of travel.  He said that the United States and various other countries would take one look at the conviction for injuring with reckless disregard “and that would probably be the end of Mr Cleaver’s travel plans”.  The Judge was of the view that a conviction would have a very real and significant impact on his ability to travel, to the point where he would be effectively barred from travel to some countries or, at least, the subject of very considerable delay and investigation before his application for a visa would be granted.  
[11]	The Judge therefore accepted that there were significant direct business and travel consequences on the entry of a conviction.  The Judge concluded that the consequences of a conviction for the charge would be out of all proportion to the gravity of the offending, acknowledging the impact it had had on the victim.  The Judge therefore discharged Mr Cleaver without conviction upon payment of $10,000 emotional harm reparation to the victim.
Test to be applied
[12]	This appeal is brought under s 296 of the Criminal Procedure Act 2011, which permits appeals, with the leave of the appellate court, on questions of law against a ruling by the trial court.  This Court explained the scope of appellate review under s 296 in R v Taulapapa, as follows:
In R v Smyth the Court held that a question of law arises for s 296 purposes when there is:
a)	a misdirection of law apparent in the decision;
b)	oversight of a relevant matter or consideration of an irrelevant matter; or
c)	a factual finding unsupported by any evidence or an omission to draw an inference of fact which is the only reasonably possible one on the evidence.
We add that an error of law may also arise when a decision is plainly wrong.
[13]	The Crown advances this appeal by reference to point (c) above: that is, its proposition is the Judge was plainly wrong in his assessment under s 107 of the Sentencing Act 2002.  In R v Malu, this Court treated “plainly wrong” as synonymous with error as described at [17](c) of R v Taulapapa; that is, a conclusion unsupported by evidence or contrary to the only reasonable possibility available on the evidence.  
Crown submissions 
[14]	The Crown’s position is that the likely consequences of a conviction for Mr Cleaver are not out of all proportion to the gravity of the offending.  The consequences would be no greater than those which would ordinarily flow and the Judge erred in finding that they would be out of all proportion.  The Crown accepts the Judge’s characterisation that the offending is of moderate seriousness.  Against that, the likely consequences are said to be potentially some reduction in income and disruption to Mr Cleaver’s business travel plans.
[15]	As to the likely effect upon Mr Cleaver’s business, the Crown submits that Mr Cleaver might justifiably expect his income to reduce as a result of not being able to continue his overseas investment enterprises in person.  However, his primary income through his family’s accountancy firm would not be significantly affected.  The Crown accepts, as the Judge was told at sentencing, that the Institute of Chartered Accountants is already aware of his offending.  Whether he is convicted or not was therefore unlikely to alter his ability to practise.
[16]	As to the likely effect on Mr Cleaver’s travel plans for business and charitable purposes, the Crown submits that the evidence does not approach the levels required for a discharge as enunciated by this Court in Edwards v R, in which this Court stated that in order to show international travel is not possible for an offender because of their conviction, the offender would need to show:
… that under the law and practice of the jurisdiction concerned:
(1)	the conviction must be disclosed but, assuming a discharge is given, the fact that the offence was committed need not be; and
(2)	in consequence of the conviction, the applicant is prima facie inadmissible, and for how long; and
(3)	there is no alternative entry process available or that, if there is, such process is unreasonably difficult and uncertain in all the circumstances.
[17]	The Crown submits that this case does not approach that level.  The conclusion of Ms Cottrell, an immigration lawyer who provided an affidavit in support of Mr Cleaver’s application for a discharge without conviction, was that arranging travel would become “complicated and time consuming” for Mr Cleaver.  Ms Cottrell did not establish, according to the Crown, what would be involved in obtaining a visa and she certainly did not suggest that it would be impossible in his circumstances.  In fact, she confirmed that it is possible to apply for a visa or other entry permission with convictions.  
[18]	The Crown then analyses the individual requirements of the United States, Australia, Canada, Japan, Singapore, Fiji, and Vanuatu, as they were explained by Ms Cottrell.  On the basis of its analysis, the Crown accepts that Mr Cleaver would suffer some extra inconvenience when travelling.  It submits, however, that there is no evidence that travel is truly essential to Mr Cleaver’s business interests.  The Crown comments that indeed the world has learned much of how to conduct business remotely in recent months because of the COVID-19 pandemic.  Furthermore, the Crown submits that given his philanthropic work, valid reasons for work travel, and many positive supporters willing to provide character references, Mr Cleaver’s prospects of successfully applying for visas or character waivers are clearly higher than many defendants’.
[19]	Finally, it submits that continued denial or minimisation of the offending should also have factored into the balancing test.  The Judge should also have had regard to the fact that Mr Cleaver did not plead guilty as it signified a lack of genuine remorse.  The Judge’s decision was therefore plainly wrong.
Discussion
[20]	The test to be applied under s 296 of the Criminal Procedure Act is fundamental to our assessment of this appeal.  It can be contrasted to an appeal by a defendant who has been refused a discharge without conviction.  In that case, although an appellate court must be persuaded that the Court below was wrong, it reaches its decision on that point by its own view of the merits.  On the other hand, in this appeal we need to be persuaded not that the Court below was wrong, but that no Judge acting rationally within the scope of ss 106 and 107 of the Sentencing Act could have made the decision under appeal.  It is a much more stringent test.
[21]	As explained, the Crown does not take issue with the Judge’s assessment of the offending as moderately serious or his recognition of the enormous emotional stress caused to the victim.  It does not take issue with the Judge’s acceptance that the Institute of Chartered Accountants already knew of the offending and would make its own assessment of it in relation to Mr Cleaver’s ability to continue to practise as an accountant. 
[22]	The Crown acknowledges that Mr Cleaver’s rehabilitative efforts are to be commended, but says they must be viewed in light of his continued minimisation of the offending.  Although consistently endorsing anti-violence attitudes in therapy is consistent with the reports from his 39 character references, it is not consistent with his offending, according to the Crown.  The Crown is therefore, in effect, saying that the Judge gave too much weight to Mr Cleaver’s rehabilitative efforts in his assessment of the gravity of the offending.  
[23]	The Crown takes a similar stance to Mr Cleaver’s ability to travel overseas for business and charitable purposes.  It says that the Judge gave too much weight to this factor.  This is its primary challenge to the Judge’s assessment of the consequences of a conviction.  In that regard, the Judge had Ms Cottrell’s affidavit, which explained the consequences of a conviction for Mr Cleaver on his ability to travel overseas.  On the basis of this evidence, the Judge concluded:
[25]	I have read the affidavit from Ms Cottrell, and of course I can accept what she says in that, and I note the examples she has given from the various countries concerning character requirements.  I am of the view that it would be a very real and significant impact on his ability to travel, to the point, I would suggest, where he would be barred, effectively, from travel to some countries or, at least, the subject of very considerable delay and investigation before his application for a visa, for example, would be granted.  
[24]	This mirrored the affidavit evidence of Ms Cottrell, who stated:
In the circumstances of Mr Cleaver it would appear that the likely consequences of a conviction will be on-going and significant.  Any application he makes to travel to the US, Australia and Canada will require him to declare his conviction/s and it is highly probable that a conviction will affect his ability to travel internationally.  It is highly probable that Mr Cleaver will be ineligible for a visa to the US, Australia and Canada should he be convicted.  He would then need to make an application for a waiver of the character requirements.  This process is complicated and time consuming and there is no guarantee that it will result in the grant of a visa.  
[25]	Mr Cleaver had travelled overseas on 11 occasions in 2019 — three times to Fiji to meet with clients, twice to Australia for a MYOB conference and on hydropower company business and once each to Indonesia, China and Hong Kong, the United States, Japan, Germany and India, mainly to meet with, or accompany, clients.  Against that background, it was open to the Judge to find that, at the least, Mr Cleaver would be the subject of considerable delay and investigation before any future application for a visa would be granted.
[26]	Although many Judges may have weighed the various factors differently and made an assessment that the likely consequences of a conviction were not out of all proportion to the gravity of the offending, we cannot say that no Judge acting rationally within the scope of ss 106 and 107 of the Sentencing Act would have discharged Mr Cleaver without conviction.  Judge Field is an experienced trial Judge.  He heard evidence over five days and had the benefit of extensive reports and submissions.  The decision he made to grant a discharge without conviction was open to him.  He was not plainly wrong.
[27]	The appeal is accordingly dismissed.

Solicitors: 
Crown Law Office, Wellington for Appellant