IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CRI-2022-485-44
[2022] NZHC 2535	

BETWEEN	MARIKA MUATABU
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	21 September 2022	
Appearances:	A Peter and O M Crosse for Appellant R G Buckman for Respondent	
Judgment:	4 October 2022	

JUDGMENT OF McQUEEN J

[1]	The appellant, Marika Muatabu, pleaded guilty to one charge of assault on a person in a family relationship.1 He appeals against his conviction and sentence on the basis that the District Court Judge erred in declining his application to be discharged without conviction, instead convicting him and imposing 12 months’ supervision.2

[2]	The appellant argues that the Judge erred in his assessment of the gravity of the offending and his assessment of the consequences of a conviction on the appellant in determining a discharge was unavailable. In the alternative, the appellant submits that the sentence of supervision imposed was manifestly excessive in the circumstances.

1	Crimes Act 1961, s 194A, maximum penalty two years’ imprisonment.
2	Police v Muatabu [2022] NZDC 13666.

MUATABU v NEW ZEALAND POLICE [2022] NZHC 2535 [4 October 2022]

Background

[3]	In the early hours of Friday 27 August 2021, the appellant knocked on the door of the flat of the victim, where she was at home asleep. He demanded entry to the flat. The victim asked Mr Muatabu to leave but he refused, saying that he needed to have a discussion with her. The victim let him inside the flat and then prepared to leave the property herself. Mr Muatabu grabbed her to prevent her from doing so. The victim told him again to leave the property but again he refused, and this time Mr Muatabu grabbed her and forced her to the ground. In the process he landed on top of the victim, as a result of which she received bruising to her hip and arm.

[4]	The appellant has no previous convictions but there is a background of family violence matters. The appellant was granted diversion in 2017 for wilful damage in a family violence context. There is a family violence bail report that records several incidents after the diversion in 2017 and before the current matter, involving family violence.

[5]	The appellant pleaded guilty to the offending on 22 November 2021. Following his guilty plea, he completed a 16-week “Living Without Violence” programme, to which he self-referred. Following completion of the course, the appellant applied for a discharge without conviction. This was considered by the Wellington District Court on 20 July 2022.

[6]	Mr Muatabu swore an affidavit in support of his application. In that affidavit, Mr Muatabu expresses his shame and remorse at his offending and takes full responsibility for it. He explains that on 27 August he had consumed significant amounts of alcohol and kava, which contributed to the offending. He asks the Court to take into account the efforts he has made to address his behaviour and ensure that it never happens again. He expresses his concern that a conviction may jeopardise his current job as a cargo handler and that a conviction would be a significant hurdle for a number of possible future careers, including joining the Police or Navy or Corrections.

District Court decision

[7]	The Judge declined the application. He considered the consequences of the conviction on Mr Muatabu were “speculative”3 and could not outweigh the “moderately serious” offending.4

[8]	Of particular focus was the impact of a conviction on the appellant’s career prospects. The Judge noted that while Mr Muatabu had future job aspirations, “there [was] no specific career plan put forward”5 and there was no evidence put before the Court that a conviction would be a “major impediment to joining the navy or the police”.6 Ultimately, the Judge concluded that there were no real or appreciable risks to his employment prospects:7
The general effect of a conviction is not such in this case as to amount to an absolute bar or significant hurdle to you, and in particular, you now have a current employment history you can point to, both in your job you had prior to COVID and in particular in your current work where you have been for some time to the point where you have clearly impressed your current employer.

Principles on appeal

[9]	Section 106 of the Sentencing Act 2002 provides that the Court may grant a discharge without conviction only when satisfied that, under s 107, the “direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.” By virtue of s 106(2), a discharge without conviction is deemed an acquittal.

[10]	It is well-settled that this assessment involves a three-step inquiry:8

… The court must consider first, the gravity of the offending; secondly, the consequences of conviction; finally, whether those consequences are out of all proportion to the gravity of the offending identified at step one.

3	Police v Muatabu, above n 2, at [17].
4	At [6] and [17].
5	At [10].
6	At [12].
7	At [16].
8	See R v Hughes [2008] NZCA 546, [2009] 3 NZLR 223 at [16].

[11]	In assessing the gravity of the offending, the Court must consider all aggravating and mitigating factors relating to the offending and the offender. The consequences of a conviction include all direct and indirect consequences where there is a “real and appreciable risk” they will occur.9

[12]	An appeal against a refusal to grant a discharge without conviction is an appeal against both conviction and sentence.10 It is conducted by way of rehearing, with the appellate court making its own assessment as to whether the s 107 threshold has been met. The basis for determining an appeal against a refusal to grant a discharge without conviction is whether a miscarriage of justice has occurred:11

(a)	by virtue of a material error by the sentencing judge in entering a conviction; or

(b)	as a result of an error by the Judge in applying the principles of discharging an offender without conviction under s 107 of the Sentencing Act 2002.

The appellant’s submissions

[13]	The appellant submits that the Judge erred in assessing the gravity of the offending as “moderately serious”. Rather, he says that this was a low level offence. The appellant compares his offending to that in Gasu v Police12 and Moala v Police.13 While accepting that the offending involved a breach of trust and occurred in the victim’s home, the appellant emphasises that the victim did let him into her home, although acknowledging that he did not leave when requested. The appellant also submits that this was a brief physical confrontation with violence on the lower end of the scale. The assault involved him pushing the victim as opposed to punching or striking her and her bruising was caused by him falling on top of her. After that, the appellant left the address.

9	DC (CA47/13) v R [2013] NZCA 255 at [43].
10	Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 [7]–[8].
11	At [12].
12	Gasu v Police [2021] NZHC 2948.
13	Moala v Police [2021] NZHC 1516.

[14]	The appellant also relies on the following mitigating factors to support his submission that the gravity of the offending is low:

(a)	The appellant pleaded guilty at the earliest possible reasonable opportunity. He was “eager” to engage in restorative justice however that conference was unable to proceed.

(b)	The appellant has no previous convictions, although it is accepted he was granted diversion in 2017 when he was 21 years old and that there have been four family harm call outs between the appellant and the victim. The appellant asks the Court to exercise caution in assessing the weight to give the family harm call outs as he says this is ultimately untested hearsay evidence.

(c)	The appellant has completed an intensive 16 week “Living Without Violence” course and two assessment sessions. This is the first rehabilitative intervention the appellant has engaged with and the certificate of completion provided to the Court describes the appellant as “attentive and constructive” at the course. He was described by the facilitator as “thinking about the material between sessions and applying the tools in his everyday life”. The facilitator also records the appellant’s report to her that changes in his behaviour are leading to improvements in his relationship with his partner.

(d)	The appellant was 26 years old when the offending occurred. It is submitted that the appellant’s case is symptomatic of a young man who made a poor decision and did not appreciate the long-term consequences.

[15]	The appellant also submits that the District Court Judge erred in considering the consequences of a conviction on his future employment prospects were “speculative” and a conviction would not amount to a “significant hurdle” to him. The appellant submits that the general consequences of a conviction are not speculative. While he will not lose his current employment as a result of a conviction, the appellant

says that he does not intend to remain in this casual employment permanently and has ambitions to pursue a more meaningful career where there are greater opportunities to progress. The appellant submits that he should not be punished for not yet establishing a foothold in a particular career. He is still relatively young, and his employment prospects have been impacted by the global pandemic. It is submitted that this uncertainty aggravates the general consequences of a conviction on the appellant.

[16]	As a result, the appellant submits that the consequences of conviction would be out of all proportion to the seriousness of offending in a family violence context. He relies on Nash v Police and Singh v Police to argue that his offending is less serious than in both those cases where the appellants were discharged without conviction.14

[17]	The appellant argues alternatively that the sentence of 12 months’ supervision is excessive in the circumstances. It is submitted the appellant has already addressed any rehabilitative needs by completing an intensive 16-week rehabilitation course and, accordingly, the Court’s intervention is not necessary. He also relies on the fact that there has been no offending since the incident arose. A sentence of supervision will require him to engage with another service, Probation, until September 2023.

Respondent’s submissions

[18]	The respondent opposes the appeal. The respondent submits that as the offending involved family violence, which is inherently serious in nature, alongside the elements of a breach of trust and an intrusion into the victim’s home, the offending was appropriately assessed as “moderately serious”. The respondent highlights the verbal abuse of the victim during the incident as elevating its severity.

[19]	While acknowledging the self-initiated rehabilitative efforts of the appellant and his remorse for the offending, the respondent contends that the previous family harm incidents weigh against his “previous good character” being a mitigating factor for the appellant.

14	Nash v Police HC Wellington CRI-2009-485-000007, 22 May 2009; and Singh v Police [2019] NZHC 2985.

[20]	Further, the respondent submits that the District Court Judge was correct in his view that youth was not a relevant mitigating factor. The respondent says the appellant was an adult who had undertaken responsibilities. At the time of the offending, the appellant was 26 years old, had two children aged three and five, and had (until being made redundant) been working as a courier driver.

[21]	Even if this Court was to determine that the gravity of the offence is more appropriately categorised as low to moderate, the respondent submits that the uncertain consequences of the conviction identified by the appellant are not “out of all proportion” to the gravity of the offending, such that the s 107 discharge threshold is met. The respondent echoes the conclusions of District Court Judge that the possible barriers to employment faced by the appellant are uncertain and vague, and submits that a “general expression of interest” to work for the Police, Corrections or the Navy cannot satisfy the Court that there is a real and appreciable risk of negative career outcomes.

[22]	In relation to the sentence of supervision, the respondent does not accept that the sentence is excessive and says that without supervision there is no guarantee the appellant will continue to take steps towards his rehabilitation and reintegration. The respondent says that the appellant would only be required to attend treatment or programmes as appropriate.

Discussion

Gravity of the offending

[23]	The appellant and the respondent contest whether the appellant’s age and lack of previous convictions can be considered mitigating factors of the offending. As my treatment of these factors is relevant to the overall assessment of the gravity of the offending, I address these first.

[24]	Youth has been regarded as a mitigating factor for three principal reasons: to recognise the neurological differences between adults and young people and the impact this may have on culpability; the impact of imprisonment on young people;

and to recognise the greater capacity of young people for rehabilitation.15 In relation to the assessment as to the gravity of the offending, argument has centred around the first category.16

[25]	In Rarere v R, the High Court refers to research undertaken by the Chief Science Adviser indicating that maturation among boys “is not complete until well into the third decade of life”, with impulse control and judgement being the final functions to mature.17 The appellant, at age 26, will therefore be nearing the end of his cognitive development.

[26]	Consistent with the “nuanced approach” the courts have taken to youth,18 I prefer to consider the impact of the appellant’s relative youth in light of the context of the offending and whether it possesses the hallmarks of youth offending. This was impulsive and reckless behaviour. The appellant, drunk, elected to visit the victim’s home address in the very early hours of the morning and demand to be let in. He was obtuse to the victim’s evident feelings of discomfort and, later, her likely fear as he would not leave the house. It appears to me that this behaviour may be the result of a person who has not reached their full cognitive development, and some consideration to this fact is necessary.19 However, I also recognise a 26 year old should be near maturation, and this factor accordingly should be given less weight than it would for, say an 18-year-old.20

[27]	Regarding the appellant’s good character, I consider the appellant is entitled to some credit for his previous lack of convictions. His previous diversion should not be counted against him. The diversion regime exists to prevent individuals charged with

15	Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].
16	The impact of a conviction on the appellant given his youth is considered further in relation to the “consequences of conviction” assessment.
17	Rarere v R [2012] NZHC 779 at [36].
18	At [37].
19  For completeness, I am not convinced by the respondent’s suggestion that the appellant’s youth   has less of a bearing given he has children and an “adult” job. Plenty of young people have children and jobs. In my view, there is not necessarily a correlation between youth and these things.
20 In reaching this conclusion, I note that this is not the first time that the relative youth of a 26-year- old has been deemed relevant to the Court’s assessment at sentencing: see R v Waitokia [2018] NZHC 2146 at [24] (in the context of third-strike offending); and Waikato Regional Council v Bertling [2019] NZDC 16796 at [70] (in the context of a discharge without conviction application).

minor offences having a criminal conviction for that matter. I note that the family harm incidents remain relevant. The Court is to consider any aggravating factor that it thinks fit.21 Given the current offending involves domestic violence, I consider the Judge was right to take the family violence report into consideration. However, the fact that these are untested reports that did not result in the laying of any charges must also be acknowledged.

[28]	I accept that the offending is comparable with Gasu and Moala. Both involved one charge of assault on a person in a family relationship. In each case, the offending was the result of significant alcohol consumption.

(a)	In Gasu v Police, the offending involved four slaps to the face and head, causing a noise bleed. The offender had to be physically removed from the victim to stop the assault. The incident had been instigated by the victim who had slapped the offender first. The actual violence itself was regarded as “moderately serious”,22 however the initiation of the assault by the victim, the offender’s previous good character, genuine remorse, rehabilitative efforts and insight, and support from the victim reduced the gravity to low to moderate seriousness.23

(b)	Moala v Police involved an unprovoked attack on a victim after a night of heavy drinking. The offender grabbed the victim and threw her onto the ground. Standing over her, he then punched two holes in the wall before punching her twice in the face with closed fists. The offender then pursued the victim as she tried to hide from him, kicking down a bathroom door and smashing her cell phone. The overall assessment of that the offending was of moderate seriousness.24

21	Sentencing Act 2002, s 9(4)(a).
22	Gasu v Police, above n 12, at [26].
23	At [26].
24	Moala v Police, above n 18, at [11]–[13].

[29]	In my view, the current offending is of similar severity to Gasu. While some of the mitigating factors present in Gasu are not present in the current case,25 the assault in itself was, in my view, less aggravating. The physical violence was minimal, involving grabbing and pushing the victim, with an incidental fall on top of the victim causing bruising. The appellant then left the premises on his own volition, unlike Gasu where physical intervention was required for the offending to end. Further, this offending differs significantly from Moala where there was a pursuit and terrorisation of the victim. I do not consider the verbal abuse to be particularly aggravating.

[30]	Further, the self-referral and completion of a 16-week intensive rehabilitation course must count significantly in Mr Muatabu’s favour. Not only does he have rehabilitation prospects, but he has taken active steps to rehabilitate and, as outlined by the course facilitator, considerable progress has been made.26 Placing significant emphasis on the appellant’s rehabilitative efforts, alongside the appellant’s youth, remorse, lack of previous convictions and early guilty plea, I consider the offending can fairly be described as of low seriousness.

Consequences of conviction

[31]	The key issue here is whether there is a “real and appreciable risk” that the appellant’s conviction will negatively impact his potential career prospects. The respondent says as there is no evidence of a specific career path, there is no such risk. I cannot accept the respondent’s submission and I find it unattractive. The appellant should not be punished for any current uncertainty as to his career path. He is still young. Given the disruptions of the pandemic over the last three years, that he is yet to settle on a career path is even more understandable.

[32]	As the appellant notes, convictions carry a social stigma and may affect a person’s career, with an employer often requesting an applicant’s conviction history. This will inevitably be so in roles the appellant has indicated an interest in. As this

25 Namely, the assault was not initiated by the victim, nor does the victim support the appellant’s discharge application. However, counsel advised me of their understanding that the appellant continues to be in a relationship with the victim.
26 I note that in Gasu v Police, above n 12, the rehabilitative efforts of the appellant were taken into account, however there is no specific mention of the rehabilitative steps taken by the appellant.

Court has noted, the impact of a conviction on a young person yet to have a foothold in a career can be permanently damaging.27

[33]	The appellant refers to Nash v Police, where a 24-year-old offender faced similar consequences to that of the current appellant.28 The offender was not at risk of losing his current job. However it was indicated that “in due course” he planned to apply to become a registered master builder, and that there were concerns membership “may be declined” in light of the conviction.29

[34]	Mallon J considered that it was “difficult to envisage” the offender being declined membership given the minor nature of the charge. However, she considered the general consequences of conviction were also relevant and weighed in favour of a discharge without conviction:30
… there are general consequences that follow from a conviction. In a variety of ways (eg. employment, insurance, immigration) people are asked to disclose whether they have criminal convictions. For those that are remorseful there can be a loss of pride and self-esteem or at least embarrassment in having to answer that question honestly. It may also materially disadvantage him—as his counsel says it may count against him when he is competing for a position against someone who does not have a conviction. …

[35]	Given the offending itself was particularly minor, Mallon J accepted that the general consequences of the conviction were out of all proportion to the offending.31

[36]	I consider that in this case it is not difficult to envisage the potential denial of jobs in the career paths sought by the appellant given each job is in the public service. The barriers that a conviction may cause the appellant in entering these professions cannot be overlooked.

27  Amstad v Police HC Auckland CRI-2011-404-00161, 6 September 2011 at [22]. I also note that   the “youth” of a 26-year-old has previously been considered relevant when assessing the consequences of a conviction in a discharge without conviction context: see Waikato Regional Council v Bertling [2019] NZDC 16796 at [70].
28 Nash v Police, above n 14.
29	At [18].
30	At [19].
31	At [20].

Proportionality assessment

[37]	In assessing whether the consequences of the conviction are out of all proportion to the offending, I find Nash v Police to be analogous and thus compelling. The offending has similarities, with both being instances of domestic violence offending. While there was no element of home intrusion in Nash v Police, the offending involved the forceful pulling of hair, resulting in the victim falling to the floor, aggressively going through the victim’s pockets, and the pulling of the victim’s leg, also resulting in a fall. Observing first that the assault was at the “lower end of the scale”,32 Mallon J concluded that the general consequences of the conviction, including disclosure of the conviction in employment applications, would be out of all proportion to the gravity of the offending.33

[38]	Given my conclusions as to the severity of the offending, I consider this case to be one where the consequences of a conviction on the appellant’s employment prospects are out of all proportion with the offending. Undoubtedly the appellant made a poor decision in the circumstances and the fact that it led to a situation of domestic violence is of concern. However, placing particular emphasis on the significant steps taken by the appellant on his own initiative to address his offending behaviour, I consider the gravity of the offending is outweighed by the impact of a conviction on the appellant’s career prospects, exacerbated by his age and that he is yet to have a foothold in a particular career.

Conclusion

[39]	Overall, I conclude that the conviction is out of all proportion to the gravity of the offence and the District Court Judge erred in applying the principles of discharging an offender without conviction under s 107.

[40]	The appellant is therefore discharged without conviction. Of course, he could not expect a similar outcome if he were to come before the courts again for family violence offending.

32	Nash v Police, above, n 14, at [13].
33	At [19]–[20].

Result

[41]	The Court allows the appeal and orders that the appellant be discharged without conviction.

McQueen J

Solicitors:
Public Defence Service, Wellington for Appellant Crown Solicitor, Wellington for Respondent