IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2020-404-000459
[2021] NZHC 1026	

BETWEEN	TYLA CHANTAL WARDLEY
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	4 May 2021	
Appearances:	TM Newman for Appellant BJ Hamilton for Respondent	
Judgment:	10 May 2021	

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 10 May 2021 at 11.00am

Registrar/Deputy Registrar

Date……………

Solicitors:	Meredith Connell, Auckland
Public Defence Service, Auckland

WARDLEY v NZ POLICE [2021] NZHC 1026 [10 May 2021]

[1]	Tyla Wardley, now aged 23 years old, appeals against her convictions and sentence on charges of burglary,1 possession of utensils2 and failure to answer District Court bail.3 She appeals on the ground of trial counsel error, on the basis that she was not advised she could seek a discharge without conviction.

Offending

[2]	Immediately prior to the time of her offending, Ms Wardley had been residing with her aunt. They had fallen out and Ms Wardley went to the house to retrieve some of her possessions. Her aunt was away at that time, on holiday. Ms Wardley nevertheless entered the home through the kitchen window. Once inside, she took two laptops, a stereo, bedding, perfume, a jewellery box and items of clothing. Her fingerprints were located on the window and her sandals outside the window, which her aunt later identified as belonging to Ms Wardley. Ms Wardley says that she was in a bad space personally at that time, including being under the influence of methamphetamine. On 14 December 2017, Ms Wardley sold one of the stolen laptops to Cash Converters for $140. She signed a declaration that the laptop belonged to her when she sold it. The laptop was on sold, and none of the other stolen property was recovered.

[3]	Ms Wardley was arrested in relation to the burglary on 6 February 2018. Upon arrest, Police located a glass pipe and an empty point bag containing crystal residue in her bag. She was released on bail that same day.

[4]	On 9 February 2018, she failed to appear in the District Court.

Procedural history

[5]	In 2018, Ms Wardley pleaded not guilty to the three charges and a judge alone trial was scheduled for 7 June 2019.

1	Crimes Act 1961, s 231(1)(a); maximum penalty imprisonment not exceeding 10 years.
2	Misuse of Drugs Act 1975, s 13(1)(a) and (3); maximum penalty imprisonment not exceeding one year and/ or a fine not exceeding $500.
3	Bail Act 2000, s 24; maximum penalty imprisonment not exceeding three months or a fine not exceeding $1,000.

[6]	In March 2019, Ms Wardley’s file was reassigned to new defence counsel (not counsel on the present appeal). Both Ms Wardley’s former and new counsel tried to get Police to reduce the charge of burglary to theft to no avail.

[7]	On 10 April 2019, Ms Wardley’s counsel (who I will refer to in the balance of this judgment as her trial counsel) communicated via text message to Ms Wardley that the Police were not prepared to amend the charge. She wrote:

Hi, I contacted the police prosecutor. They advised that there has been 3 attempts made previously to reduce the charge and they are not willing to amend anything. So your options are to as follows:

1.	Plead guilty to the charges as they stand and accept the summary of facts and hope to be dealt with on the day of plea (next week).

2.	Seek a sentence indication on all the charges – this is where we ask the judge if you were to plead guilty to all the charges what type of sentence you would get (this gives you options and ability to hear the sentence you would get before you plead guilty).

3.	Maintain not guilty plea and go to the trial on 7 June.

Have a think and let me know what you would like to do. I will need to advise the court this week.

[8]	Ms Wardley initially replied to the text message requesting a sentence indication, but then sent a follow up message: “Sorry changed my mind. I’ll plead guilty”. On 17 April 2019, she duly pleaded guilty to the charges. Her written “Instructions as to Plea” record, relevantly:

I wish to vacate my not guilty pleas and resolve this case due to my personal circumstances.

[9]	Trial counsel’s file note from the time indicates that one of the personal circumstances which prompted Ms Wardley to seek resolution of the charges was that she was pregnant with her second child and was due to give birth in May 2019.

[10]	In the event, the District Court Judge was not in a position to deal with       Ms Wardley’s sentencing on 17 April 2019, due to a busy list court and the need for further information.   Trial counsel’s file note of that day includes a notation that   Ms Wardley “wants to look at studying health science once she’s settled [with] baby”.

[11]	Ms Wardley’s sentencing eventually took place on 25 July 2019. I note that the Provision of Advice to Courts (PAC) Report dated 25 July 2019 recorded that  Ms Wardley intended to return to a Health Sciences bridge course at AUT “with the hope of becoming a midwife”. Ms Wardley’s trial counsel clearly had a copy of the PAC Report at the time, as it includes, for example, her handwritten comments on the front page.

[12]	Returning to the narrative, on  25  July  2019,  Judge  Hastings  sentenced  Ms Wardley to supervision for nine months with special conditions4 and ordered reparation of $200 payable at $10 per week.5 As to why Judge Hastings adopted a sentence of supervision, he stated:

[5]	I have been handed up a letter from CADS that you have attended three counselling sessions, the last one being last year, in 2018. It also records that you are open to support and want to make a change.

[6]	You have no history in the adult court. The pre-sentence report recommends a sentence of supervision. In all the circumstances, that to me seems like the right thing to give you. This conduct needs to be denounced but I also need to take into account the fact that you have no previous convictions and that you have rehabilitative needs.

Appellant’s personal circumstances

[13]	In her affidavit filed on the present appeal,6 Ms Wardley expresses regret at taking her aunt’s belongings. Of her circumstances at the time of the offending, she states:

The time of the offending was a difficult time for me. I had broken up with my partner,…and lost custody of my first child,… to him. I was in a violent relationship with another man, who was giving me drugs. I was struggling with addiction and depression.

[14]	She also describes how her circumstances subsequently improved:

By [March 2019] I had had support from Women’s Refuge, the City Mission’s Social Detoxification Unit and received treatment from Community Alcohol and Drugs Service.

4	Not to consume, possess or use non-prescription alcohol or drugs; and to undertake to complete appropriate assessment and counselling or treatment as directed by, and to the satisfaction of, a probation officer.
5	Police v Wardley [2019] NZDC 26748.
6	There being no objection to it being received on the appeal.

I stopped using drugs and broke up with my abus[ive] partner. I was able to resume my relationship with my former partner…

[15]	In relation to her plea decision and future plans, she states:

I pleaded guilty to the charges on 17 April 2019 and told [my counsel] I wanted to have the matter wrapped up as soon as possible. I was pregnant with my second child…I really just wanted to focus on caring for myself, my daughter and the second child I had on the way.

…

By mid 2019 I was planning on becoming a midwife. I mentioned this to the Probation Officer who interviewed me before the sentencing hearing. At that time I had no idea that a conviction would impact my ability to get a job.

[My counsel] did not mention to me that I could apply for a discharge without conviction. I did not know that such an outcome was possible.

…

At the start of 2020 I started looking for a job. I have had absolutely no luck and have not been called back by anyone. I applied for fifteen to twenty jobs waitressing, in retail and administrative support work. I fear my convictions are stopping me getting a job.

In January 2020 I started a Diploma in Health Science, and completed that on 30 October 2020. Then I enrolled in the Bachelor of Nursing. This is a three year degree.

While I was doing the Diploma, in about April, I was informed that I might not even be able to enrol in nursing because of my convictions. I was offered to be refunded the course costs. However, I wished to complete the Diploma and did so. However, I became concerned I would never be able to become a Nurse.

…

I have received a letter saying that I have been accepted into the Bachelor of Nursing Program. I am aware that to become a Registered Nurse I have to pass a character test. My convictions will not help me with this but I am told that if I do not have any further offending I may be able to be registered as a Nurse.

In the meantime I am still unable to get a job.

[16]	Ms Wardley has also put before the Court:

(a)	A letter dated 17 July 2019, authored by a counsellor at Community Alcohol and Drugs Services (CADS), confirming that she attended a CADS assessment and three follow-up appointments to address her

addictions. The counsellor reported that Ms Wardley was “open to support and intentional in making change”.

(b)	An academic record dated 17 July 2019 which shows that Ms Wardley completed Level 3 of the National Certificate in Health, Disability and Aged Support (Health Assistant) with New Zealand Management Academies Ltd.

(c)	The PAC Report dated 10 July 2019, which records that she told the probation officer that she intended to return to her Health Science bridging course at Auckland University of Technology in February 2020 with the hope of becoming a midwife.

(d)	Her Criminal and Traffic History, which records that at age 15 she faced two charges which were dealt with in the Youth Court.7 Other than the index offending, Ms Wardley has no other convictions.

[17]	No objection was taken to this material being admitted on the appeal. Most of it is fresh and all is cogent. I admit it accordingly.

Trial counsel’s affidavit

[18]	Ms Wardley’s trial counsel confirms that she did not advise Ms Wardley about the possibility of applying for a discharge without conviction. She explains why, stating:

Ms Wardley is correct that a discharge without conviction…was not discussed and no application was advanced at the sentencing hearing.

The reason I did not discuss a section 106 application with Ms Wardley was due to a combination of factors:

(a)	When the file was reassigned to me, Ms Wardley wanted matters to be disposed of quickly due to the pending birth of her second child…

(b)	The seriousness of the charges and the property taken – the breach of trust and premeditation made this more serious in my view.

7	Unlawfully getting into/ onto a motor vehicle/ cycle; Obstructing police.

(c)	Previous dealings with the court in the Youth Court – I acknowledge this is not a bar to making an application for a section 106 discharge, however it does affect the previous good character assessment.

In hindsight, an application may well have been appropriate given her wish to study midwifery. The possibility of a nursing degree was not mentioned to me at that stage. Notwithstanding this, the strong sense that I had from Ms Wardley at that time was a desire to resolve this as quickly as possible.

My understanding was Ms Wardley’s health science studies were still in the early stages. At the time the PAC report was completed, the health science bridging course was on hold until the beginning of 2020 when she anticipated she would be more settled with her second baby…Ms Wardley instructed me on the day she entered her ‘guilty’ pleas that she wanted “to look at studying health science once she is settled with baby”.

It was unknown to me when she would finish this course and whether she would continue into midwifery. This was also set out on the PAC report… It was, in my view, a desire but there was nothing confirmed from the university regarding the midwifery or nursing studies.

(emphasis added)

Approach on appeal

[19]	Ms Wardley’s notice of appeal was filed out of time on 30 October 2020, over a year after sentencing.8 This Court may, however, at any time extend the time allowed for filing a notice of appeal.9

[20]	Ms Wardley says that the basis for the delay is her late knowledge of how her convictions might prevent her from enrolling in a nursing course. She learned of this in April 2020. She also says that she was delayed by the COVID-19 lockdowns, her unfamiliarity with the legal aid processes (and multiple engagements with a Community Law Centre), and suffering an infection following an operation. The respondent does not oppose this Court granting her leave to appeal out of time. Taking into account the reasons for the delay, I consider it is in the interests of justice to grant leave and I do so.

[21]	The appeal is brought pursuant to s 229 of the Criminal Procedure Act 2011. This Court must allow the appeal if satisfied that the Judge erred in his assessment of

8	Criminal Procedure Act 2011, s 231(2).
9	Criminal Procedure Act 2011, s 231(3).

the evidence to such an extent that a miscarriage of justice has occurred, or relevantly for present purposes, a miscarriage of justice has occurred for any other reason.10

[22]	As regards the circumstances in which an appeal against conviction might be successful following entry of a guilty plea, I refer to Kós P’s observations in Whichman v R:11
It is trite law that only in exceptional circumstances will an appeal against conviction be entertained after a guilty plea has been entered. “Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned.”12 …

…

Three broad categories of relevant exceptional circumstance were identified by [the Court of Appeal] in R v Le Page to which a fourth was added in Merrilees v R:13

…

(d)	where trial counsel erred in advising as to the non-availability of certain defences or potential outcomes, or where counsel wrongly induces a decision to plead guilty under a mistaken belief or assumption that no tenable defence existed or could be advanced.

(emphasis added)

Law

Trial counsel error

[23]	Last year, in K v R,14 the Court of Appeal affirmed the summary of principles it had set out in Clutterbruck v R concerning appeals on the ground of trial counsel error:15
The starting point is R v Sungsuwan where the Supreme Court emphasised that the focus must always be on whether there has been a miscarriage of justice.16 Counsel’s decisions may be relevant to that, but radical error by trial counsel is not required to establish a miscarriage has occurred. More recently

10	Criminal Procedure Act 2011, s 232(2)(b) and (c).
11	Whichman v R [2018] NZCA 519 at [34]–[35].
12	R v Le Page [2005] 2 NZLR 845 (CA) at [16].
13	R v Le Page [2005] 2 NZLR 845 (CA) at [17]–[19]; and Merrilees v R [2009] NZCA 59 at [35].
14	K v R [2020] NZCA 133 at [80]–[81].
15	Clutterbruck v R [2017] NZCA 361 at [13]–[14].
16	R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [69]–[70].

this court in R v Hall reviewed the topic of alleged counsel error.17 The Court identified three fundamental matters over which a defendant had the absolute right to decide and concerning which counsel must follow or not act – the plea, the focus of the defence and the decision to testify.18

The emphasis in R v Sungsuwan on whether there has been a miscarriage had the effect of reducing the emphasis or focus on the nature of counsel’s error, and the then test of whether it was a “radical” error. The consequence of any errors was more important than assessing their gravity. R v Hall is consistent with this, but clarifies that some matters are so fundamentally tied to a defendant’s rights that errors in relation to them will almost always constitute a miscarriage.

(emphasis added)

[24]	In R v Sungsuwan, the Supreme Court had observed:19

[W]hile the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate Court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.

(emphasis added)

[25]	In cases in which trial counsel error is alleged, the approach is to:20

[A]sk first whether there was an error on the part of counsel and, if so, whether there is a real risk that it affected the outcome by rendering the verdict unsafe. If the answer to both questions is “yes”, this will generally be sufficient to establish a miscarriage of justice, so that an appeal will be allowed.

(emphasis added)

Discharge without conviction

[26]	Sections 106 and 107 of the Sentencing Act 2002 enable a court to discharge an offender without conviction, provided the court is satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

17	Hall v R [2015] NZCA 403, [2018] 2 NZLR 26.
18	At [65].
19	R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [70].
20	R v Scurrah CA159/06, 12 September 2006 at [17]; cited in Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [11].

[27]	This is a two-stage inquiry.21 First, the court must determine the gravity of the offending, the consequences of conviction and whether those are out of all proportion to the gravity of the offence. Second, if the court is satisfied the consequences are out of all proportion, it should consider whether it should nonetheless exercise its discretion to decline to grant a discharge without conviction.

Submissions

For Ms Wardley

[28]	Mr Wright, counsel for Ms Wardley on this appeal,  submits  that  because Ms Wardley did not know a discharge without conviction was an option she could pursue, the sentencing process miscarried. He submits that if she had been informed of such an option and pursued that option, she may not have been convicted. He seeks the quashing of Ms Wardley’s convictions and referral of the matter back to the District Court for sentencing, to allow Ms Wardley to seek a discharge without conviction.

[29]	In addition to Sungsuwan v R, Mr Wright refers to the following authorities in support of the appeal:

(a)	Tuhi v Police:22 Ms Tuhi appealed against her conviction and sentence, having pleaded guilty to a charge of wounding with reckless disregard at the conclusion of the evidence at her judge alone trial. She had been sentenced to 12 months’ intensive supervision. She had no prior convictions. She had initially pleaded not guilty. Her counsel did not inform her that she had an opportunity to seek a discharge without conviction. The Police accepted that she should have been informed of this option. Cull J was satisfied that the failure of her counsel to inform her and/or make an application for a discharge without conviction meant that there had been a miscarriage of justice.23

21	DC(CA47/2013) v R [2013] NZCA 255 at [31].
22	Tuhi v Police [2019] NZHC 2046.
23	At [16].

(b)	Harris v R:24 Ms Harris appealed against her conviction and sentence, having pleaded guilty to a charge of cultivating cannabis and theft of electricity. She had been sentenced to six months’ home detention. She had no prior convictions. She initially pleaded not guilty. Her counsel had not advised her of her right to seek a discharge without conviction at sentencing. On appeal, Ms Harris submitted that an application for discharge would have had reasonable prospects of success because first, she was not the principal offender, and second, a conviction would have serious consequences for her work in television and media. In the context of the first stated reason, the Court noted that it was arguable Ms Harris was not the primary offender, and the details of who she said was the primary offender had not been put before the sentencing Judge. On this basis, Miller J (delivering the judgment of the Court) stated:25
Ms Harris should have the opportunity to persuade a judge that the gravity of her offending was sufficiently low, in all the circumstances, to open the door to a reduced sentence. We express no view as to the prospects of success for an application for discharge without conviction. That will presumably require a disputed facts hearing and the outcome will depend on the evidence led there. We will give her the opportunity to seek a discharge by quashing her sentences and remitting the proceeding to the District Court for resentencing.

(c)	Joy v Police:26 Mr Joy appealed against his conviction, having pleaded guilty to one Summary Offences Act charge of assault. He had instructed his counsel to seek a discharge without conviction but was sentenced immediately by the District Court Judge upon entry of his guilty plea. His counsel did not have an opportunity to indicate to the Judge that Mr Joy sought a discharge without conviction. Dunningham J was satisfied that the circumstances in which his conviction was entered constituted a miscarriage of justice.27

24	Harris v R [2020] NZCA 553.
25	At [13].
26	Joy v Police [2014] NZHC 1918.
27	At [10].

[30]	Mr Wright submits that these cases demonstrate that failure to advise a client of the option of applying for a discharge without conviction may amount to the sort of counsel error which results in a miscarriage of justice. Further, he submits that these cases (and in particular Harris) also demonstrate that an appellant has no burden on an appeal of conclusively demonstrating the merits of an application for discharge without conviction.

[31]	As to Ms Wardley’s particular circumstances, Mr Wright submits that her age, expression of pursuing studies in midwifery and clean adult criminal history were factors which indicate counsel should have considered and advised about the possibility of applying for a discharge without conviction. Further, he submits that the haste with which Ms Wardley made her decision to proceed to sentencing, changing her mind quickly about whether to seek a sentencing indication or to plead guilty, undermines any suggestion that she made an informed choice about her plea.

For the respondent

[32]	Mr Hamilton, counsel for the respondent, submits that for Ms Wardley to succeed on appeal, she must satisfy the Court that, had she known about the possibility of advancing an application for a discharge without conviction, (a) she would have advanced one, and (b) there was a reasonable chance the Judge would have granted the application. Otherwise there could be no “real risk” that the outcome of her sentencing was affected (and thus no prospect of a miscarriage of justice having occurred).

[33]	Focussing on (b), Mr Hamilton made detailed submissions directed to whether a s 106 application by Ms Wardley would have been likely to succeed. He submits that the gravity of Ms Wardley’s offending was towards the “moderate end of low”, and responsibly accepts that Ms Wardley’s personal circumstances go some way towards mitigating the seriousness of her offending.  He identifies, however, that   Ms Wardley fears two consequences of her conviction: first, general prejudice toward her employment prospects; and second, difficulty in obtaining registration to become a nurse. He submits that Ms Wardley has insufficiently substantiated the prejudice she considers herself to be facing in relation to her current job search, which is of a generalised and speculative nature only. With respect to her desire to become a nurse

(or midwife), he first submits that this Court should take note of the relative recency of her expression of this desire (stating it only appears to have emerged in 2020).   Mr Hamilton further submits that the consequences of Ms Wardley’s conviction cannot be said to be out of all proportion to the gravity of the offending. This is said to be because the determination of fitness to be registered as a health practitioner is an area well within the exclusive domain of the relevant registration board (pursuant to the Health Practitioners Competence Assurance Act 2003 (the Act)).

[34]	Developing this submission, Mr Hamilton notes that under the Act, registration as a nurse is still possible despite a conviction, subject to an applicant satisfying the relevant authority that the conviction does not reflect on the applicant’s fitness to practice.28 Mr Hamilton also notes that from information on the Nursing Council of New Zealand’s website, the Council appears to take a similar approach to registration as a registered nurse or enrolled nurse.  By reference to a number of authorities,29   Mr Hamilton submits that the courts are hesitant to “suppress” convictions from entities such as these, as it risks usurping the decision-making function of such expert bodies.

[35]	In sum, Mr Hamilton submits that it cannot be demonstrated on this appeal that there is a real risk that a different outcome would have eventuated in the absence of trial counsel’s failure to advise on a s 106 application. In other words, irrespective of whether Ms Wardley’s trial counsel ought to have advised on making a discharge without conviction application (and such an application had been made), Mr Hamilton says it is highly likely that Ms Wardley’s convictions would have remained.

Analysis

[36]	I am clear in my view that the appropriate outcome on the present appeal is to quash Ms Wardley’s convictions and sentence and to remit the matter to the District Court so that she has a proper opportunity to advance an application for a discharge without conviction. My reasoning follows.

28	Health Practitioners Competence Assurance Act 2003, s 16(c).
29	Maraj v Police [2016] NZCA 279 at [28]; Daleszak v Police [2015] NZHC 1853.

[37]	First, I am satisfied there was trial counsel error, in that Ms Wardley’s counsel at the time did not advise in either the lead up to sentencing or at the sentencing hearing that an option would be to apply for a discharge without conviction. I acknowledge that matters progressed quite quickly once Ms Wardley decided to change her plea. But certainly as of April 2019, trial counsel was aware of Ms Wardley’s plans for further study.  In addition, it  was clear from the  PAC  Report  in July 2019 that    Ms Wardley had raised her desire to complete further study in the hope of becoming a midwife. As noted, the PAC Report was available to trial counsel. This could have also triggered a discussion with Ms Wardley about the possibility of applying for a discharge without conviction.

[38]	I note trial counsel’s quite responsible acknowledgement that in hindsight it may have been appropriate to have  advanced  an  application,  particularly  given Ms Wardley’s wish to study midwifery. I further acknowledge that there does not appear to have been a particularly clear expression of this intent by Ms Wardley to trial counsel herself at the time. Nevertheless, given the relatively low level nature of the offending, Ms Wardley’s age at the time of the offending, her expressed desire for further study, that the PAC Report referred to her desire to become a midwife and her personal circumstances which appear to have led to her offending, there was at least a proper basis for an application for a discharge without conviction to have been considered.

[39]	The issue nevertheless remains whether a miscarriage of justice has occurred as a result of trial counsel’s error. I am satisfied that this is the case. It is obviously not possible on the present appeal to express any firm views about the merits of an application for a discharge without conviction. Nor would it in my view be proper to do so. But what is clear is that the present case is not one in which I am satisfied trial counsel error could not have altered the sentencing outcome.

[40]	I accept Mr Hamilton’s submission that the Court of Appeal’s observations in Harris are not directly relevant to the present appeal, as the Court’s concern that the sentencing process had miscarried was more directed to the inability of Ms Harris to seek a disputed facts hearing, which would in turn have informed the Court and counsel as to whether an application for a discharge without conviction was

appropriate. Ultimately, Mr Wright accepted that the Court of Appeal’s decision in Harris is properly read in this way, rather than suggesting an appellant has no burden to demonstrate that a discharge without conviction would have succeeded.

[41]	Nevertheless, there is no real dispute that Ms Wardley’s culpability in relation to the offending was low, taking into account the aggravating and mitigating factors attaching to the offender and the offending itself. In particular, she appears to have been in a particularly vulnerable situation at the time, including drug addiction issues. As Mr Hamilton responsibly acknowledged, she appears to have made excellent progress in her rehabilitation.

[42]	I acknowledge the authorities referred to by Mr Hamilton, to the effect that it would be relatively rare in cases where a statutory authority has been tasked with screening applicants for admission to a trade or profession that the court would effectively substitute its discretion as to what may or may not be relevant to that exercise.30 Nevertheless, I consider detailed arguments in this regard are the proper domain of a judge determining an application for a discharge without conviction, with the full statutory framework and any other relevant information before them (for example, any evidence which suggests that the type of convictions in this case would effectively amount to a barrier to practice).31

[43]	Moreover, it is somewhat inevitable that convictions of this kind will hinder Ms Wardley in her employment prospects more generally, a point which appears to have been borne out to date by the information provided in her affidavit. While courts are often hesitant to place significant weight on vague and unspecified risks said to arise from a conviction, clear and obvious risks to employment can be taken into account in assessing whether the consequences of a conviction would be out of all proportion to the gravity of the offending involved. For example, such matters persuaded Wylie J in Cook v Police to allow an appeal against the refusal to grant a discharge without conviction.32 Wylie J noted that the offending in that case (an

30	Maraj v Police [2016] NZCA 279 at [28].
31	In this context, I note Ms Wardley’s evidence that she has been told this could be the case for her, and was offered a refund of her Diploma course fees.
32	Cook v Police [2014] NZHC 282.

assault in a domestic violence context) was of a “comparatively minor nature”, and the defendant was a young man and he and his partner had reconciled. Wylie J stated:33

It is in Mr Cook’s and his partner’s best interests that Mr Cook obtain the best possible employment, utilising the skills which he has already acquired and which he is now acquiring. His employment prospects are potentially blighted by the consequences of the conviction. The offending was a one-off incident, which occurred in a domestic context, following heavy drinking. While the offending was isolated, its potential consequence[s] could well be long term and they could have an effect which would not be confined to Mr Cook. Having considered the available materials, I am persuaded that Mr Cook has well and truly learnt his lesson in relation to the matter.

[44]	The Court of Appeal made similar observations in Gaunt v Police, stating: 34

It would be unrealistic not to recognise that a conviction for common assault, which carries a maximum penalty of one year’s imprisonment, would have an inhibiting effect on Mr Gaunt’s employment prospects. Answering truthfully the commonly asked question of whether he had any criminal convictions would immediately place him at a disadvantage. If given the opportunity to do so, he would be required to explain that the conviction was for spitting at his partner in the course of a domestic dispute. That is not likely to be seen as a positive quality in the assessment of Mr Gaunt as a prospective employee.

There is nothing novel about these propositions. It is well-recognised that the black mark of a conviction alone is a significant consequence on an otherwise clean record,35 especially for a young person who does not yet have a foothold in a career.36 Mr Gaunt is a 22 year old father with an otherwise clean record. He has expressed his remorse and acknowledged he needs to be a better father and role model to his daughter. We consider that a conviction would have a detrimental impact on his ability and opportunity to do so.

(emphasis added)

[45]	The Court accordingly allowed the appeal and granted a discharge without conviction.

[46]	Observations such as these may be relevant to any application for a discharge without conviction made by Ms Wardley, particularly given her age at the time of offending, her culpability (including her personal circumstances at the time) and her rehabilitative efforts in the interim. I should emphasise that these comments are not to signal that a discharge without conviction should be granted. Rather, it is to

33	At [28].
34	Gaunt v Police [2017] NZCA 590, at [14]–[15].
35	DC (CA47/2013) v R [2013] NZCA 255 at [44].
36	Amstad v Police HC Auckland CRI-2011-404-161, 6 September 2011 at [22].

demonstrate that the fact Ms Wardley did not have an opportunity to advance these arguments on an application for a discharge without conviction means a miscarriage of justice has occurred.

Result

[47]	I grant the appeal. Ms Wardley’s convictions and sentence are quashed. I direct that this case be remitted  back  to  the  District  Court  for  the  purposes  of Ms Wardley advancing an application for a discharge without conviction pursuant to s 106 of the Sentencing Act 2002.

Fitzgerald J