ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,
OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.html	
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT’S SON PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360352.html	
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2019-404-336
[2019] NZHC 2857	

BETWEEN	E D

Appellant	
AND	THE QUEEN

Respondent	

Hearing:	4 November 2019	
Counsel:	A Bloem for appellant
K Guilford for respondent	
Judgment:	4 November 2019	

ORAL JUDGMENT OF KATZ J
[Appeal against conviction and sentence]

Solicitors:	Meredith Connell, Office of the Crown Solicitor, Auckland Bloem & Associates, Auckland

E D v THE QUEEN [2019] NZHC 2857 [4 November 2019]

Introduction

[1]	On 6 May 2019, Ms D pleaded guilty to one charge of assaulting a child.1 She applied to be discharged without conviction. On 26 July 2019 Judge C S Blackie refused Ms D’s application in the District Court at North Shore.2 Instead he ordered her to come up for sentence if called upon within 12 months. Ms D now appeals the refusal to grant her a discharge without conviction.

The offending and subsequent events

[2]	The victim was Ms D’s nine-year-old son. Ms D and the child’s father are separated. On 29 October 2018 the child was at Ms D’s address. His father had requested an extension of custody, so he could take him on a trip overseas. For whatever reason, this upset Ms D. She became involved in an argument with the child. Ms D grabbed her son by the hair and dragged him into the kitchen. The child was terrified and wet himself. Ms D told him to clean up the urine.

[3]	Initially, Ms D denied assaulting her son and stated that he was “put up to it” by his father. She acknowledged that he had wet himself but said this was because he noticed she was upset. She denied telling him to clean up the urine.

[4]	Ms D subsequently pleaded guilty, after resolution discussions had taken place and a summary of facts was agreed at the Case Review Hearing. She has no previous convictions. Subsequent to the offending she has voluntarily undertaken 42 hours of community work with Red Cross, and also completed a parenting programme and a 10-week anger management course.

Legal principles – discharge without conviction

[5]	The Court must not discharge an offender without conviction unless satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.3 This entails a three-step enquiry:4

1	Crimes Act 1961, s 194(a): the maximum penalty is two years’ imprisonment.
2	Police v D [2019] NZDC 14476.
3	Sentencing Act 2002, s 107.
4	Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]-[28].

(a)	first, consider all the aggravating and mitigating factors relevant to the offending and the offender to assess the gravity of the offending;

(b)	second, identify the direct and indirect consequences of the conviction for the offender; and

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

[6]	In considering whether a claimed consequence is out of all proportion to the offending, it is not necessary for the Court to be satisfied that the consequence is inevitable.5 As noted by the Court of Appeal:6
[22]	… There must be a “real and appreciable” risk that any given consequence will happen: this standard recognises that the court is assessing the likelihood of something that may happen in the future.

[23]	The offender should ordinarily put information before the court to provide a factual basis for a decision that the test has been satisfied. There is no legal onus on the offender to do so however, and the standard of proof in s 107 is simply that the judge be satisfied that the requirements of the section are met.

(Citations omitted.)

[7]	If satisfied that the consequences are out of all proportion to the gravity of the offence, the Court must then consider whether to exercise its discretion to grant a discharge without conviction.7 Cases where the Court declines to do so will be rare.8

What is the gravity of Ms D’s offending?

[8]	Judge Blackie described Ms D’s offending as “not severe” and “obviously not extreme”, but also noted that that it was relatively serious for a child to be put in that position by his mother. Overall, he categorised the offending as “moderate”.9

5	Hammond v Police [2019] NZHC 2452 at [7].
6	R v Taulapapa [2018] NZCA 414.
7	Sentencing Act 2002, s 106.
8	R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [12].
9	At [10].

[9]	Ms Guilford, for the Crown, submitted that the Judge was correct to characterise the offending as moderately serious. Ms D took her anger out on her blameless son, entirely unprovoked, and then told him to clean up his own urine. The victim was vulnerable, and the offending involved a breach of trust.

[10]	Assaulting a child is a serious type or category of offending, given the vulnerability of the victim. Obviously, however, there is a very broad range of offending within this category, potentially ranging from a light smack to a prolonged and brutal assault. Ms D’s offending resulted from an isolated burst of anger that caused a momentary loss of control. No weapon was used, and no physical injury resulted. The experience, however, was clearly very frightening for Ms D’s young son.

[11]	I accept Mrs Bloem’s submission that the offending was out  of character.  Ms D’s record is otherwise unblemished. Ms D also subsequently demonstrated responsibility by promptly pleading guilty. She has since made genuine, and voluntary, rehabilitative efforts. These demonstrate her remorse, her insight into her offending, and her commitment to being a good parent going forwards.

[12]	Overall, I assess the gravity of the offending as perhaps slightly less serious than the Judge. I would characterise this offending as being in the low to moderate range (albeit closer to the lower end of the spectrum than the middle).

What will be the consequences of a conviction for Ms D?

[13]	Ms D submitted in the District Court that a conviction would have a disproportionate effect on two inter-related facets of her life: her employment and her ability to travel to Australia.

[14]	The Judge described both these risks as “speculative”.10 The Judge concluded that while Ms D might have some explaining to do to her employer, it was unlikely that she would lose her job. Further, it was unlikely that she would be prevented from entering Australia; she simply had to obtain a visa.

10	At [11].

[15]	Ms Guilford submitted that the Judge’s analysis  of this issue was correct.  Ms D has not lost her employment, despite her employer being aware of her offending. It is not possible to attempt to forecast her future employability if she were to leave her current job.

[16]	Ms Guilford further submitted that the evidence produced regarding the Australian travel requirements does not establish that Ms D will in fact be unable to travel. At worst, she will need to obtain a visa.

[17]	Ms D is employed as a finance officer with a major company which operates in both New Zealand and Australia. Her contract contains a clause which permits her employer to terminate her employment if she is charged with or convicted of any criminal offence which “might impact the business or reputation of the Employer” or the trust or confidence it has in her. Ms D’s employer is aware of the charge she faced and is presumably also aware of her guilty plea and subsequent conviction. Her employer has not, however, taken any steps to terminate her employment. Nor is there any suggestion that this is likely to happen if this appeal is dismissed.

[18]	As for Ms D’s future employability beyond her current job, the Court of Appeal has made it clear that it is not the function of the Court to pre-empt decisions by employers about the suitability of prospective employees.11 I find the prospect of her conviction impacting on Ms D’s future employment prospects to be too speculative to carry any material weight.

[19]	Of significance, however, is the fact that Ms D’s employer has recently embarked on a major expansion of its Australian business. As a result, Ms D may be required to travel to Australia on short notice. A letter provided by her employer advises that Ms D may well need to travel to Australia to assist with the rollout of a particular system in the Australian business and that:

When the opportunity arises, we try and give as much notice as possible to our employees but as our business is rapidly changing sometimes, we may require [Ms D] to travel on short notice.

11	Graham v Police [2018] NZCA 172 at [29].

[The company] is currently expanding in Australia with further acquisitions being looked at to join the Group. The possibility of [Ms D] having to travel to Australia will increase as the business continues to grow and her progression within the company.

[20]	Mrs Bloem has provided information from the website of the Australian High Commission in Auckland, as well as a letter from an Australian qualified immigration adviser, Mr Gray. (I note that this information was not available to the District Court Judge). Before travelling to Australia, Ms D is required to provide the Australian Department of Home Affairs (“the Department”) with a consent form enabling the police to disclose her conviction history to the Department. The Department will then obtain and review that information and advise Ms D whether she needs to apply for a visa to enter Australia. This process takes approximately three weeks.

[21]	If a visa is not required, Ms D will be provided with a letter of approval valid for one year for presentation at the Australian Border. She will need to re-apply for such a letter annually. If a visa is required, a full character assessment will be required. This is undertaken by the Visa Application Character Consideration Unit in Melbourne, Australia. The time frame for completion of a character assessment will vary, but the Australian High Commission advises that it can take six months or more.

[22]	It is certainly not inevitable that Ms D’s conviction will prevent her from entering Australia. It is apparent, however, that it will make the process significantly more onerous and time-consuming. The process of applying for a visa appears to be relatively lengthy and there is, of course, no guarantee of success. The procedural requirements I have set out will inevitably cause delay to any travel to Australia and would make regular trans-Tasman travel as part of Ms D’s employment difficult, if not impossible. Given that Ms D works for an employer that is currently undertaking a significant expansion into the Australian market, I accept that this poses a real issue. Lack of mobility could jeopardise Ms D’s employment, rendering her unable to fulfil her duties in a timely manner (or at all) and hindering her prospect of advancement within the company. Obviously, if Ms D were to lose her job, or fail to advance in her career in the manner she otherwise might have, this will also indirectly impact on her son.

[23]	Taking these various matters into account, I am satisfied that there is a real and appreciable risk that the consequences of Ms D’s conviction will be very serious in terms of her career.

Would the consequences of a conviction be out of all proportion to the gravity of the offending?

[24]	I have found the gravity of the offending to be in the low to moderate range, albeit towards the lower end of that spectrum. The consequences of the conviction for Ms D, however, are relatively serious, for the reasons I have outlined. I have concluded that the consequences of a conviction would be out of all proportion to the gravity of Ms D’s offending. That being the case, I am also satisfied that the discretion to grant a discharge should be granted in her favour.

Result

[25]	The appeal against conviction and sentence is allowed.

[26]	The conviction for assault on a child is quashed. Ms D is discharged without conviction on this charge.

[27]	I note that the child’s name is automatically suppressed by s 204(1) of the Criminal Procedure Act 2011 (“Act”). In addition, I make an order suppressing the name of Ms D under s 200(1) of the Act on the basis that publication of her name would lead to the identification of her son and would cause him undue hardship.

Katz J