IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2019-404-553
[2020] NZHC 284	

BETWEEN	MATTHEW O’NEILL
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	18 February 2020	
Counsel:	R Thomson for Appellant T Stuart for Respondent	
Judgment:	27 February 2020	

JUDGMENT OF WHATA J

This judgment was delivered by me on 27 February 2020 at 3.00 pm.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:	Meredith Connell, Auckland

O’NEILL v POLICE [2020] NZHC 284 [27 February 2020]

[1]	Mr O’Neill pleaded guilty to one charge of assault of a family member. He did not seek a discharge without conviction, so it was not considered. He was sentenced to twelve months’ supervision. He now seeks, on appeal, to be discharged without conviction under s 106 of the Sentencing Act.

Background

[2]	The facts of the offending are set out in a summary of facts which state that at approximately 6.00 pm on Sunday, 20 October 2019, the victim and Mr O’Neill were at their home.   The victim and Mr O’Neill were having a conversation regarding   Mr O’Neill’s relationship with his associate. The victim mentioned an occasion when Mr O’Neill did not come back home from overseas to attend a friend’s funeral.      Mr O’Neill took exception to this comment and left the kitchen. He walked outside into the garage and laundry area. Inside the laundry was a teacup containing a solution of bleach and water. He picked up the teacup and returned to the kitchen. At this time, the victim was still seated in the kitchen. Mr O’Neill then suddenly swung his arm holding the cup, flicking the bleach solution at the victim’s face. As a result, the solution struck her face and eyes and they started to burn. She then received medical treatment for that.

[3]	When the Police spoke to Mr O’Neill, he admitted the facts and in explanation stated he threw the contents of the cup over the victim, believing it was water.

[4]	As noted, the Judge was not asked to and did not address discharge without conviction. The Judge concluded, however, that the focus should be on Mr O’Neill’s rehabilitation and therefore imposed a supervision order of twelve months with specific conditions that he attend an Anger Management or Living Without Violence programme.

Evidence

[5]	Mr O’Neill sought leave to file an affidavit as to the circumstances of the offending and the consequences of the conviction. It is not opposed. Given this, and the fact that the main body of the evidence cogently goes to the merits of the appeal, I grant leave to file this evidence.

[6]	Mr O’Neill deposed that he had been living with his mother for some time prior to the offending. He said he assisted with the mortgage for their home and had also supported his mother financially where possible, including by purchasing a chair to help her recover after surgery, and paying her dentistry bills. He also referred to the assault, which broadly aligns with the summary of facts.

[7]	Mr O’Neill further described the effects of the conviction. He referred to his employment at Gulf Harbour as a trainee dockmaster until November 2019 (he was dismissed due to problems with his then availability to work). He noted that he served with the Royal New Zealand Navy from September 2003 to April 2017. His service record is unblemished. He said that since leaving the Navy he has continued to serve in the Naval Reserve as a Communication Warfare Specialist at the rank of Leading Seaman. He said he is currently attached to the HMNZS NGAPONA. He said his work requires a high security clearance.

[8]	Attached to his affirmation is a letter from an Executive Officer of the NGAPONA, LTCDR John Gresson. It sets out the likely consequences of conviction for Mr O’Neill as follows:

(a)	His criminal conviction constitutes a “changed circumstance” in a security clearance context. Such a conviction makes it likely that his security clearance will be revoked and even if not revoked, a conviction also imperils any renewal of a security clearance when it otherwise expires. Loss of security clearance will likely prevent him from continuing to work as a Communication Warfare Specialist.

(b)	His criminal conviction is an offence involving violence and calls into question his general suitability to serve in any part of the Royal New Zealand Navy.

[9]	Ms Thompson also advised that Mr O’Neill has already lost his security clearance and will shortly meet with his superior officers to discuss his future.

Jurisdiction

[10]	Section 232 of the Criminal Procedure Act 2011 provides for an appeal against conviction if a miscarriage of justice has occurred for any reason. The usual case involves a claim that something went wrong with the trial process, including guilty plea. This case is unusual in that discharge without conviction was not considered because it was not advanced by Mr O’Neill at sentencing. It might be said, therefore, that the error is not appealable because it is one of Mr O’Neill’s own making. Errors of this kind in relation to guilty pleas (for example) have been given short shrift.1 But, s 11(1)(a) of the Sentencing Act imposes a mandatory obligation to consider discharge without conviction in the following terms:

11	Discharge or order to come up for sentence if called on

(1)	If a person who is charged with an offence is found guilty, or pleads guilty, before entering a conviction and imposing a sentence the court must consider whether the offender would be more appropriately dealt with by—

(a)	discharging the offender without conviction under section 106

[11]	Given this, and the potential significance of discharge to Mr O’Neill, it is in the interests of justice to resolve the appeal on its substantive merits. I note Courtney J in Leatinuu took a similar approach.2

Section 106

[12]	It is common ground that the test for s 106 of the Sentencing Act involves a three-step process:3

(a)	Assessing the gravity of the offence, including all aggravating and mitigating factors relating to the offending and the offender;

(b)	Identifying the direct and indirect consequences of a conviction;

1	Su’a v R [2017] NZCA 439.
2	Leatinuu v Auckland Council [2013] NZHC 3489 at [14].
3	See R v Taulapapa [2018] NZCA 414 at [22].

(c)	Considering whether those consequences would be out of all proportion to the gravity of the offending.

[13]	If a court determines that the consequences are out of all proportion it must consider whether it should exercise its residual discretion to grant a discharge, though it will be a rare case where a court will refuse to grant a discharge in such circumstances.4

Gravity

[14]	Turning then to the gravity of the offence. At face value, the offending is moderately serious offending of its kind. Mr O’Neill flung a substance, including bleach, at the face and eyes of the victim, his mother. The risk associated with such an action to the victim was high, with potentially very significant consequences for her.

[15]	Against this, the summary of facts does not state that Mr O’Neill knew the cup contained bleach. The summary also records that he advised the Police at the time of the offending that he did not know that the cup contained bleach. If that is the case, then the flinging of water into the face of another person is a much less serious form of offending of this kind.

[16]	Mr O’Neill’s account of what occurred was not challenged at sentencing or before me. I can then to proceed on the basis that he did not intend to fling a dangerous substance at the face of his mother. He is remorseful and also willing to participate in any programme that addresses his rehabilitative needs. I think he presents a very low risk of reoffending. Balanced against this, his mother was vulnerable to any form of attack and suffered soreness to her eyes and face as a consequence of the action. She also still opposes the application for discharge. In the result, I would put the gravity of the offending at the low (rather than very low) end of the spectrum for offending of this kind.

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

Direct and indirect consequences

[17]	As noted by LTCDR John Gresson, while Mr O’Neill is entitled to be heard on the circumstances of his offending and prosecution, he is likely to lose his security clearance which would likely prevent him from working as a Warfare Communication Specialist. It transpires that he has in fact already lost his classification. Therefore, I am satisfied that there is a real risk that if he remains convicted, Mr O’Neill will lose his security clearance and thus be precluded from his role as a Communication Warfare Specialist. More broadly, there is also a risk of administrative discharge, though it is difficult to quantify this risk.

[18]	Balanced against this, I note Mr O’Neill’s skills appear to be transferable. For example, he worked for a time as an engineer for British Telecom. I note also that it appears he lost his job as a trainee dockmaster at Gulf Harbour because of availability issues and not because of the offending. It has not been suggested that he will not be able to obtain employment of this kind again.

Proportionality

[19]	Is this outcome “out of all proportion” to the offending? Subject to what I have to say below about the legitimacy of screening, I consider that exclusion from work as Communication Warfare Specialist and/or administrative discharge would be out of all proportion to the offending. This case falls within the class of case where discharge should be available because the black mark of conviction is likely to cut off or cut short a professional career path.5 In this case, a highly specialised career path.

[20]	However, as the Court of Appeal affirmed in Maraj, due deference is afforded to screening processes, particularly where the public interest is engaged, and those processes are fair to the affected persons.6 Relevantly, that Court approved the following statement by Wylie J in Roberts v Police:7

5	See Gaunt v Police [2017] NZCA 590 at [15]; Puriri v New Zealand Police [2018] NZHC 1682; cf Pereira v Police [2019] NZHC 2130.
6	Maraj v Police [2016] NZCA 279 at [36].
7	At [28], citing Roberts v Police (1989) 5 CRNZ 34 (HC) at 36. See also Pereira v Police at [28], above at n 5.

It seems to me, and in this respect I think I echo what Holland J has said, that it would be inappropriate, at any rate in all but the most exceptional case, for this Court to substitute its discretion as to what may or may not be relevant on the seeking of admission to a particular profession for the discretion which Parliament has seen fit to vest in a statutory body. Indeed it is not perhaps going too far to say that to do so the Court would be actively concealing from the statutory body information which ought properly to come before that body.

[21]	In the present context, I accept the Royal New Zealand Navy is best placed to assess whether Mr O’Neill possesses the requisite judgement and character for his role as a Communication Warfare  Specialist.  However,  it  is  important  to  note  that Mr O’Neill has been completely transparent with the Navy about his offending. Not only is this to his credit, but I can proceed on the basis that he will be thoroughly vetted by the Navy in terms of his ongoing suitability. The normal utility of conviction as a legitimate trigger for vetting is therefore not an issue I need be concerned about. Conversely, the already real risk of permanent loss of security clearance and related job opportunity, should not be exacerbated by the fact of conviction.

Overall conclusion

[22]	Mr O’Neill’s offending involved a momentary lapse of judgement which had unintended consequences for the victim. It should not, by any ordinary measure, bring to an end a 17-year professional association with the Navy, especially in a hard-earned capacity such as that of a Warfare Communication Specialist. It may be that the Navy decides nevertheless, applying the special standards it must apply in the vetting of its staff, that Mr O’Neill is no longer suitable for his specialist role and/or should be discharged from service. But that should not be premised on the black mark of conviction per se. To do so would, in my view, be out of all proportion to his offending. I am thus satisfied that s 106 is properly engaged.

[23]	In the result, the appeal is allowed. Mr O’Neill is discharged without conviction.