IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2020-404-000133
[2020] NZHC 1521	

BETWEEN	SEAN MATHEW DOAK
Appellant	
AND	THE QUEEN
Respondent	

Hearing:	15 June 2020	
Appearances:	Todd Simmonds for the Appellant
Fiona Culliney and Kirsten Eskildsen for the Respondent	
Judgment:	1 July 2020	

JUDGMENT OF MOORE J
[Appeal against conviction]

This judgment was delivered by me on 1 July 2020 at 2:30 pm Registrar / Deputy Registrar
Date:

DOAK v R [2020] NZHC 1521 [1 July 2020]

Introduction

[1]	The appellant, Sean Matthew Doak, is a Police officer who a jury found guilty of presenting a taser.

[2]	At his sentencing on 20 September 2019 he applied for a discharge without conviction. Judge N J Sainsbury dismissed the application, convicting and discharging him.1

[3]	Constable Doak now appeals that decision. He says that the direct and indirect consequences of the conviction, particularly the likelihood he will lose his job, are out of all proportion to the gravity of the offending.

The facts and the verdict

[4]	At sentencing the Judge summarised the facts. He was the trial Judge. No issue is taken with his analysis. The following account is drawn from his sentencing remarks supplemented by evidence given at trial.

[5]	In the early hours of 17 September 2017 Constable Doak was working the late shift as a uniformed Police officer in Auckland. He was partnered in a marked patrol car with another young constable, A, who, at that time, had been in the job for just a few weeks. Constable Doak was driving.  Shortly before midnight, when they were in the Mt Eden area, they received advice that a pursuit was in progress. They were tasked with getting in front of the vehicle and laying road spikes. They were successful. Road spikes were deployed on a street in Herne Bay. The officers watched the pursued car pass over them. They saw the driver was a male and in the passenger seat was a woman. Despite the damage to its tyres, the car continued at high speed towards the central business district. Throughout the pursuit the officers received ongoing reports from the Police helicopter. It was believed that the car had been driven into the Sky City carpark.

[6]	Constable Doak and A were closest. Constable Doak stopped the patrol car at the top of the carpark’s entry ramp before he and A ran into the carpark. They found

1	New Zealand Police v Doak [2019] NZDC 23856.

the car. The male driver had fled but the female, who will be referred to as X, was huddled in the driver’s seat.2 They opened the door, demanding loudly where the driver was and who the car belonged to. X claimed she did not know. It was at that point X sprayed Constable A in the face with what the Judge concluded was probably CRC. This disorientated her and stung her eyes. Constable Doak went to look for the driver. At about this time a CIB car arrived. X was removed from the car. She was screaming and resistant. It required the combined efforts of both CIB officers and Constable A to restrain her. She was pepper sprayed. Once restrained, she was placed in handcuffs. She was then placed in the back of a patrol car. At about this time Constable Doak returned.

[7]	What exactly occurred from this point is unclear. CCTV footage produced at the trial revealed that Constable Doak approached X with a taser in his hand. He leaned down close to her head. It seems likely that he was attempting to obtain information from her regarding the identity and whereabouts of the driver. The Judge was satisfied this information was needed, given the risk the driver might convert another car and escape, thereby placing the public at further risk.

[8]	X, who gave evidence at the trial, was uncertain as to what she could feel on her head. That is unsurprising because she was restrained and unable to open her eyes. It is common ground that the arc function on the taser was activated by Constable Doak. This produces an audible and distinctive spark across the front of the device which is used as a warning that the taser is armed and ready to be used. There was no evidence that Constable Doak caused X any physical harm or that X was intimidated by this conduct.

[9]	Constable Doak was charged with assault with a weapon under the Crimes Act 19613 and presenting a restricted weapon under the Arms Act.4 He was acquitted of the assault but found guilty of the presenting.

2	In evidence she said she moved to the driver’s seat to search for her phone.
3	Crimes Act 1961, s 202C.
4	Arms Act 1883, s 52.

Approach to appeal

[10]	The procedure for discharges without conviction is governed by ss 106 and 107 of the Sentencing Act 2002 (“the Act”).

[11]	Under s 107, the Court must carry out the following three-step test;5

(a)	assess the gravity of the offence, taking into account all the aggravating and mitigating factors relating to the offending and offender;6

(b)	assess the direct and indirect consequences of a conviction, where the Court is satisfied there is a "real and appreciable" risk such consequences would occur;7 and

(c)	determine whether those consequences are all out of proportion to the gravity of the offence.

[12]	If the offender meets the s 107 threshold, the Court may go on to consider whether or not to exercise its residual discretion to discharge the offender under s 106.
However, once the s 107 test is satisfied this will normally result in a discharge.8

[13]	An appeal against a refusal to grant a discharge is an appeal against conviction and sentence.9 The proportionality test under s 107 requires an evaluative judgment which is subject to normal appellate principles; only if that threshold is met may the court exercise its s 106 discretion.10 As such, I must undertake a fresh assessment of the relevant competing factors.

District Court decision

[14]	After setting out the facts, the  Judge  turned  to  an  assessment  of  Constable Doak’s culpability. He acknowledged that the charge carried a relatively

5	R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16].
6	Z (CA447/2012) v R [2012] NZCA 599 at [27].
7	DC (CA47/13) v R [2013] NZCA 255 at [43].
8	R v Hughes, above n 5, at [12].
9	Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [8]-[9].
10	R v Hughes, above n 5, at [11].

low maximum penalty and although the jury’s verdict necessarily meant that the taser had been presented with no lawful or sufficient purpose, X was neither harmed nor apparently aware of what Constable Doak was doing with the taser. The Judge also observed that Constable Doak’s conduct needed to be viewed in context; that he had just been involved in a tense and stressful pursuit which had placed the public in real danger. A was suffering the effects of being sprayed in the face and X was unco- operative and obdurate.

[15]	However, against that, the Judge described Constable Doak’s decision to approach X as “very poor”. He observed that as a community, we rightly repose high levels of trust in our Police in the exercise of their powers over citizens. We expect them to observe restraint and self-control, particularly in difficult situations. When there is a breach of trust, especially where that breach involves a vulnerable person, Police officers can expect to be subject to criminal sanction.

[16]	Weighing against those findings, the Judge noted that Constable Doak, at 25, was still young. In all other respects he had been a diligent and valuable member of the Police. His culpable conduct represented a momentary lapse of judgement, possibly contributed to by inadequate training. The Judge noted that Constable Doak had yet to face internal disciplinary action. He accepted that one of the potential consequences was dismissal. He referred to an affidavit filed in support of the application by Ms Gooch, the senior legal advisor to the New Zealand Police Association. Based on her knowledge and experience, she concluded that while the decision regarding dismissal remained one for the Police to make, it was more likely than not that Constable Doak would lose his employment if convicted.

[17]	However, when balancing that risk against the gravity of the offending, the Judge was not satisfied that consequences were out of all proportion. He concluded by observing that while a conviction will have an effect on whether he would remain employed, the Judge expressed the hope that through the exercise of sensible judgement on the part of the District Commander, Constable Doak would remain in the employment of the Police.

[18]	For these reasons he dismissed the application. He entered a conviction but discharged Constable Doak without penalty.

Submissions

Appellant

[19]	Mr Simmonds, for Constable Doak, submitted that the Judge understated the likely consequences of a conviction and was thus wrong to conclude the likely consequences of a conviction would not be out of all proportion to the gravity of the offending.

[20]	In particular, he submitted the Judge erred when he said the District Commander focuses on the underlying facts of the offending and effectively disregards the fact of conviction when deciding whether an officer should retain their employment. Had the Judge adopted the correct approach he would have weighed the likely consequences of a conviction against the gravity of the offending and, in particular, that:

(a)	the offending was very much at the lower end of the scale;

(b)	there is a real and appreciable risk that if convicted, Constable Doak’s career with the Police would be terminated; and

(c)	the likely consequences of a conviction would be wholly disproportionate to the gravity of the offending, particularly when regard is had to the very positive, personal circumstances  of Constable Doak.

[21]	On this basis Mr Simmonds submitted that the test under s 107 of the Act is met and the Court should allow the appeal and discharge Constable Doak without conviction.

Crown

[22]	Ms Culliney, for the Crown, properly and responsibly accepted that the outcome was “finely balanced”. However, she emphasised that while the gravity of the offence as charged is low, the offending is moderately serious, aggravated as it is, by Constable Doak’s position as a Police officer. The presentation of the taser was at “someone who was vulnerable, handcuffed and subject to pepper spray”.11 She submitted that as an on-duty Police officer, Constable Doak abused his position and, with it, the public’s trust. She submitted that Police officers, as with everyone else, must be held accountable to the law and to the same standards which, through their office, they are charged to enforce. Any threat to future employment as a Police officer is a predictable consequence of conviction and, as such, it cannot be said that the direct and indirect consequence of offending are out of all proportion to the gravity of the offence.

Discussion

[23]	Adopting the three-stage test, I turn to consider each in turn.

The gravity of the offence; aggravating and mitigating factors

[24]	Despite the Judge’s consideration of the offence as charged, this step primarily focuses on the gravity of the offence committed, rather than the nature of offence.12

[25]	However, the nature of the charge does assist in informing an assessment of the gravity of offending. That the charge carries a maximum penalty of three months’ imprisonment is relevant. As the Judge observed, anything with a lower penalty is in the non-imprisonable category.

[26]	The assessment of the nature of the offending needs to be viewed in context. The conduct in question occurred at the end of a prolonged, high speed and extremely dangerous pursuit. Members of the public were exposed to grave danger by the driver. When the car was discovered in the carpark with the passenger still inside,

11	District Court decision at [23].
12	R v Taylor [2018] NZHC 688 at [46]; Babich v R [2018] NZHC 2324 at [7].

Constable Doak rightly needed to ask who the driver was and where he had gone. That he did so in robust terms cannot be criticised in the circumstances.

[27]	However, after he returned to the car and approached X again, there are a number of aspects of what he did which I regard as aggravating.

[28]	The first is that X was handcuffed in the back of a patrol car and unable to see. On any analysis she was vulnerable.

[29]	Secondly, while the jury’s verdict necessarily means that it found that the taser was presented at X, the Judge was satisfied the taser was operated by the officer in a way which caused it to arc, a feature which is both audible and visible. This was a finding of fact available to the Judge who saw and heard the evidence. Plainly, it was a deliberate act. It was intended to intimidate X. That X was incapacitated or distracted to the extent she was not aware of what the constable was doing is of limited mitigation. Against this, there is no evidence the taser was actually pointed or even aimed at X. The question trail included a definition of “presenting”. This was said to include “pointing or aiming”, but also included “brandishing, deploying or displaying”. Notably, during its deliberations, the jury asked to view the CCTV footage again. This was followed by a question which asked whether both limbs of the definition were required to be proved. The Judge responded by directing that either option was available. A verdict of guilty on the presenting charge followed. Thus the factual basis on which the jury determined guilt is uncertain. That being the case, any finding of fact must favour the appellant. For that reason, I must assume the jury did not find Constable Doak pointed or aimed the taser at X.

[30]	Thirdly, the most serious aggravating feature is that these actions were undertaken by a Police officer acting in the course of his duty. Constable Doak is a representative of the Police as an institution. For him to have acted threateningly when dealing with a vulnerable person is objectionable, not only because of any harm caused to the victim, but also because such conduct damages the reputation of the Police in the eyes of the general public. As the Judge properly observed, there is a legitimate public expectation that Police officers, when acting in the execution of their duties,

will discharge that function with absolute integrity. That is a quality to which the public is entitled for the reasons set out more fully by the Judge.

[31]	Weighing against these considerations, however, are the mitigating factors personal to Constable Doak. He is 25 years old. At the time of the incident he was 23 and had been a sworn member of the Police for approximately 16 months. Most of his service had been spent on the frontline. He has no criminal record, nor has he been the subject of any internal disciplinary procedures. However, given he contested the charges, no credit for remorse is available.

[32]	It follows I agree with the Crown’s analysis that the offending itself was comparatively low level with some serious aspects.

What are the direct and indirect consequences of conviction?

[33]	Under this heading there is only one issue to be considered and that is whether there is a real and appreciable risk that if convicted, Constable Doak will be dismissed from his employment. In assessing that risk it is not necessary for the Court to be satisfied that the identified direct and indirect consequences will inevitably or even probably occur.13

[34]	Constable Doak very much wishes to keep his job and pursue a career with the New Zealand Police. His present restricted duties, imposed since he was charged, have limited his ability to develop and advance his career as he would have wished.

[35]	As the Judge observed, and Ms Culliney accepted, there is a real and appreciable risk that dismissal will be a consequence of conviction. That is apparent from both Constable Doak’s affidavit and the affidavit of Ms Gooch. Ms Gooch has extensive experience in dealing with employment issues on behalf of the Police Association. Her unchallenged evidence is that while not determinative, the presence or otherwise of a conviction will be a relevant factor for the District Commander to consider in determining whether Constable Doak’s employment will be terminated. She says that the absence of a conviction is a factor likely to operate in

13	Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34].

Constable Doak’s favour. Of greatest significance, Ms Gooch’s unchallenged evidence is that in the present case, it is more likely than not that Constable Doak will lose his employment if he is convicted.

[36]	It needs to be observed that this is not a case where a discharge without conviction will operate to conceal the circumstances of the offending from the Constable’s present employers. Constable Doak’s employer is obviously fully appraised of the prosecution and the conviction. After all, the charges were laid by the Police and prosecuted on their instructions.

[37]	In R v Taulapapa, the Court of Appeal observed that a conviction may affect a person’s career, but that consequence must normally yield to the employer’s right to know.14 I am also conscious of the Courts’ traditional reluctance to “usurp the role of a professional body or a particular employer to decide the significance of a particular conviction”.15 But that is not the case here. No decision of this Court will operate to “usurp” or fetter the District Commander’s decision on Constable Doak’s future. There is no question here of concealment or brushing the details of the offending under the carpet. It is accepted that the case for discharge may not be as strong when the professional body will know about the offending in any event.16

Is that consequence out of all proportion to the gravity of the offence?

[38]	Under this heading I first note the importance of Police officers not being seen to be treated more leniently than others who offend.17 On the other hand it would be wrong in principle for Police officers to be treated more harshly, simply by reason of their occupation.

[39]	I regard Ms Gooch’s evidence on the likelihood of dismissal in the event of conviction pivotal in this assessment.

14	R v Taulapapa [2018] NZCA 414 at [42].
15	Stuart v Police [2015] NZHC 165 at [30].
16	Parker v Police [2016] NZHC 2524 at [21] and [26]-[29].
17	Police v Rose DC Christchurch CRI 2013-009-7762, 19 November 2013 at [8].

[40]	This Court found itself in a similar position in Hammond v Police.18 There the appellant was an Auckland-based Police officer who, likewise, was involved in a Police pursuit. The driver of the fleeing car was a 14-year old boy. In the course of his  arrest  and  while  the  he  was  being  searched  by  a  fellow   officer,   Constable Hammond took hold of the victim’s rat’s tail, pulled it back with sufficient force to jerk the boy’s head back, and using a Police issue seat belt cutter, chopped off the rat’s tail.

[41]	In the District Court Constable Hammond pleaded guilty. He did so at an early stage. He unsuccessfully applied for a discharge without conviction. He was fined
$500. However, he successfully appealed to this Court. In allowing the appeal, Hinton J observed that while the charge sat at the lower end of violent offences and the victim suffered no physical harm, the fact that the offending was committed by an on-duty Police officer was a significant  aggravating  factor.  Hinton J considered Constable Hammond’s age, at 26, to be a material mitigating factor. She pointed out that with or without a conviction the risk of dismissal was a real and appreciable one which, she concluded, would be out of all proportion to the low gravity of the offending.

[42]	Similar considerations apply in the present case. In my view the index offending was less serious than that in Hammond. The offence, too, is a good less serious with a maximum penalty of just a quarter of that which Constable Hammond faced. However, unlike Constable Hammond, who accepted responsibility from an early stage, Constable Doak, denied the offending and went to trial. Standing back and comparing the two cases to the extent that is ever possible, I regard the respective culpability of the defendants as sitting at broadly comparable levels.

[43]	It follows I am thus satisfied that the consequences of conviction are out of all proportion to the offending and the appeal should be allowed.

18	Hammond v Police [2019] NZHC 2452.

[44]	The Police is a uniformed and disciplined force. It will be for the District Commander to make the assessment of Constable Doak’s fitness to remain in the Police’s employment in the light of the organisation’s relevant and applicable principles and values. Despite my decision, that remains the case and nothing in this judgment should be read as operating to fetter the District Commander’s discretion in that regard.

[45]	Having made my decision, it is necessary for me to determine whether I should, notwithstanding, exercise my discretion not to discharge Constable Doak without conviction. There are no factors which would justify such a course and neither did Ms Culliney attempt to persuade me otherwise.

Result

[46]	The appeal is allowed.

[47]	The conviction and sentence are quashed.

[48]	The appellant is discharged without conviction.

Moore J
Solicitors:
Mr Simmonds, Auckland Crown Solicitor, Auckland