ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200(2)(f) CRIMINAL PROCEDURE ACT 2011.	
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.	
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE	
CRI-2024-454-000020
[2024] NZHC 2714	

BETWEEN	H
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	18 September 2024 (via AVL/VMR)	
Counsel:	E J Forster for Appellant
A M Barham for Respondent	
Judgment:	19 September 2024	

JUDGMENT OF LA HOOD J
(Appeal against Conviction and Sentence)

Appeal against decision not to grant a discharge without conviction

[1]	Mr H appeals against the refusal of the District Court to discharge him without conviction under s 106 of the Sentencing Act 2002.1 The Judge sentenced Mr H to six months’ home detention for strangulation,2 and assault,3 of his 11-year-old son.

1	New Zealand Police v [H] [2024] NZDC 11006 [Decision under appeal]. Mr H pleaded guilty at an early stage and a conviction was entered at an earlier stage.
2	Crimes Act 1961, s 189A(b); maximum penalty seven years’ imprisonment.
3	Crimes Act, s 194(a); maximum penalty two years’ imprisonment.

H v NEW ZEALAND POLICE [2024] NZHC 2714 [19 September 2024]

[2]	Mr H appeals on the basis that a discharge without conviction ought to have been granted. Alternatively, the credit given for personal mitigating factors was insufficient, particularly credit for mental and physical health, rehabilitative efforts, previous good character, and remorse.

[3]	The Crown accepts the Judge did not expressly consider aspects of Mr H’s personal mitigating factors in assessing the overall gravity of the offending when applying the test for a discharge without conviction. However, the Crown submits that gravity of the offending remains moderately serious, and the consequences of conviction are not out of all proportion.

[4]	For the reasons set out below, taking into account all of Mr H’s mitigating circumstances, I assess the overall gravity of the offending as lower than the District Court Judge determined. I find that the consequences of conviction, particularly employment prospects, is out of all proportion to the gravity of the offending. Accordingly, I allow the appeal and grant a discharge without conviction.

The relevant background

[5]	Mr H, aged 55, has an 11-year-old son. Mr H suffered a significant deterioration in his mental health prior to the offending, which required admission to inpatient mental health treatment in October 2022 and April 2023.

[6]	On 8 May 2023, at 8:30 pm, Mr H and his son were in their lounge, sitting on the couch next to each other. His son confronted him about his alcohol consumption, which had been identified as an issue during his hospital admissions and for which he had been attending counselling with a community alcohol and drug provider since his April 2023 admission. Mr H did not like being questioned, and became angry, reached over, and grabbed his son by the neck and applied pressure. His son screamed, and the mother ran to the lounge and physically intervened, yelling at Mr H to stop. Mr H pushed his son away by his neck as he let go. His son did not sustain any injuries from the incident, and Mr H later apologised to his wife about the behaviour. This gave rise to the assault charge.

[7]	On 9 May 2023, the next night at about 9:00 pm, Mr H and his son were again sitting in the lounge, and the mother was present. A verbal argument ensued between Mr H and his son. The argument heightened, and Mr H became angry about not being respected by his son. It escalated physically, and Mr H reached over and grabbed his son by the neck and applied force. His son grimaced and cried in pain. The force applied made it difficult for his son to breathe. The mother physically intervened, pushing the defendant by his chest and arm while yelling at him to stop. She had to wrench Mr H’s hand hard to remove it from the son’s neck. The incident lasted five to seven seconds.

[8]	When spoken to by police, Mr H expressed remorse for his actions. He stated it was an isolated incident and that he lost it because of his son’s bad behaviour.

District Court decision

[9]	In the sentencing decision, the Judge outlined the offending,4 and noted the seriousness of strangulation.5 Given the historical nature of Mr H’s previous convictions (for dishonesty offending at aged 19 that resulted in a sentence of supervision), the Judge opted to treat him as a first-time offender.6 He noted the victims’ impact statements which outlined the stress Mr H was under and mental health conditions, and that they wished for him to be home.7

[10]	The Judge determined that a discharge without conviction was inappropriate,8 and went on to consider the features of the offending. The Judge identified that the assault occurred on two successive nights, that he targeted the son’s throat, that the second occasion was more serious and lasted longer, and his wife had to intervene to make him desist.9 The victim was vulnerable, there was a breach of trust, and the

4	Decision under appeal, above n 1, at [1]–[4].
5	At [5].
6	At [5]. The Judge noted that Mr H’s previous dishonesty convictions were more than 30 years prior.
7	At [6].
8	At [7].
9	At [9].

offending occurred in the context of Mr H’s mental health issues and alcoholism.10 The Judge said the offending was “moderately serious”.11

[11]	The Judge then turned to Mr H’s personal circumstances,12 and concluded that the consequences of a conviction would not be out of all proportion to the gravity of the offending.13

[12]	The Judge then turned back to the nature of the offending, and found that the aggravating features warranted a starting point of two years’ imprisonment for the strangulation offence.14 The Judge gave credit of 25 per cent for early guilty plea, and 15 per cent for the personal factors at large –– his health difficulties, recent stroke (post offending), and mental health conditions.15 He then commuted the sentence to seven months’ home detention,16 with the condition that he is to attend an alcohol programme, treatment, and counselling.17 The Judge then reduced the sentence further by one month, to take account of time spent in custody, and on restrictive bail conditions.

Approach on appeal

[13]	This appeal is principally brought as an appeal against the refusal to discharge without conviction, challenging the entry of the conviction. In the event it is unsuccessful, Mr H pursues his contingent appeal against sentence alone. The appeal is therefore properly categorised as a composite appeal against conviction and sentence under s 232 of the Criminal Procedure Act 2011, as the Court of Appeal discussed in Jackson v R.18 Following Jackson, the principled basis on which to determine such an appeal is to establish that a miscarriage of justice has occurred by virtue of a material error by the sentencing judge in entering the conviction.19 In the

10	At [10]–[12].
11	At [13].
12	At [14].
13	At [15]–[16].
14	At [17] and [23].
15	At [18].
16	At [19].
17	At [21]. The Judge said that following the sentence of home detention the conditions to attend counselling will continue as post-detention conditions, at [23].
18	Jackson v R [2016] NZCA 627 at [6]–[16].
19	At [12]; Criminal Procedure Act 2011, s 232(2)(b).

alternative, it can be argued that a miscarriage of justice has occurred “for any reason” if the Judge has erred in applying the principles for discharge without conviction set out in s 107 of the Sentencing Act 2002.20

[14]	In determining whether there has been a material error, the appellate court must make its own assessment as to whether the test in s 107 has been met.21 This is a matter of fact requiring judicial assessment.22 If the appellate court comes to a different view on the evidence, the Judge necessarily will have erred and the appeal must be allowed.23 The appellant bears the onus of persuading the Court to reach a different conclusion by identifying the respects in which the decision is said to be in error.24 If the appellate court is satisfied that an error is established, it must set aside the conviction, with the result that the sentence appeal does not require determination.25

[15]	If the conviction appeal fails, the Court must then proceed to the second stage of determining whether the end sentence imposed was correct.26 Should this be necessary, sentence appeals are governed by s 250 of the Criminal Procedure Act and must be allowed where the Court is satisfied that there is an “error in the sentence imposed on conviction” and “a different sentence should be imposed”.27 Under s 251, the Court can impose another sentence or vary the sentence, but it cannot at this stage impose a discharge without conviction.28

20 At [12]; Criminal Procedure Act, s 232(2)(c).
21 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38]; Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5]; Taipeti v R [2017] NZCA 56, [2018] 3 NZLR 308 at [62].
22 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8] and [11] citing Rajamani v R [2007] NZSC 68, [2008] 1 NZLR 723 at [5].
23	Sena v Police, above n 21, at [38].
24	At [38]; Taipeti v R, above n 21, at [63].
25	Jackson v R, above n 18, at [13].
26	At [13].
27	Criminal Procedure Act, s 250(2).
28	Jackson v R, above n 18, at [14].

Conviction appeal

The parties’ positions

[16]	Mr Forster, for Mr H, submits that the Judge erred in not granting Mr H a discharge without conviction. Mr Forster submits the Judge failed to fully consider Mr H’s personal circumstances when considering the gravity of the offending, particularly Mr H’s “diminished intellectual capacity”, subsequent rehabilitation, previous good character, and remorse. Mr Forster submits, as the Crown accepts that the Judge erred in assessing the appropriate credit for personal mitigating features, it follows that the Judge incorrectly assessed the gravity of the offending. He says the Judge also erred in finding there was no independent evidence of the consequences of conviction, given the PAC report, and the Judge failed to consider financial hardship. In the circumstances, a discharge without conviction ought to have been granted.

[17]	Ms Barham, for the Crown, accepts the Judge erred in only giving credit of 15 per cent for personal mitigating features (she submits 25 per cent would have been appropriate) and failing to fully articulate the basis for this credit. She accepts this error must have impacted on the Judge’s overall assessment of the gravity of the offending, but the offending was still moderately serious. The Crown submits there is no evidence suggesting that a conviction would bar Mr H from gaining employment, that prospective education institute employers ought to become aware of the offending in the public interest, and that ultimately the consequences of a conviction are not all out of proportion to the gravity of the offending.

Assessment and decision

[18]	As already noted, the issue for me is whether the Judge erred in reaching the conclusion that the test for granting a discharge without conviction in s 107 of the Sentencing Act was not met.

[19]	As already noted, the Crown concedes that the Judge erred in his assessment of the overall gravity of the offending by giving insufficient weight to Mr H’s personal

mitigating factors. I accept that the Judge erred in that respect, and in any event, I am required to undertake my own assessment on the merits.29

[20]	The Supreme Court in Bolea v R discussed the analysis under s 107 of the Sentencing Act as comprising three stages:30

[39]   The case before us proceeded on the basis that the decision whether   to grant a discharge without conviction under s 107 is to be determined in the way identified by the High Court. That is, the court considers the aggravating and mitigating features of the offence and of the offender to assess the gravity of the offending. The court then identifies the direct and indirect consequences of conviction. The next step is to evaluate whether those consequences are out of all proportion to the gravity of the offence. If the court decides that the consequences of conviction are out of all proportion to the gravity of the offending, the court must still consider whether to grant     a discharge without conviction; although the current approach is that it is rare to decline to do so in that situation.

[21]	Thus, a Court considering whether to discharge a defendant without conviction should follow a three-step process:

(a)	identification of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender;

(b)	identification of the direct and indirect consequences of conviction; and

(c)	a determination of whether those consequences are “out of all proportion” to the gravity of the offence.

[22]	If that threshold is met the court  will  consider  the  residual  discretion  under s 106.31

29	See above at [14].
30	Bolea v R [2024] NZSC 46; See also Scott v R [2019] NZCA 261 at [79]; and Prasad v R [2018] NZCA 537 at [11].
31	Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]; and Prasad, above n 30, at
[11].

Gravity of the offending

[23]	The authorities are clear that in assessing the gravity of the particular offence, the Court is required to consider all aggravating and mitigating factors of the offending and the offender.32

[24]	The offending involved two incidents of Mr H grabbing, and on the second occasion, holding, his son by the neck with force. The second occasion was more serious than the first and involved impeding his son’s ability to breathe. Strangulation is a serious offence, with grave psychological impacts for victims, particularly in the intimate partner violence context.33 Although the offending did not occur in that context, there are a number of aggravating factors. There was a power imbalance given the age difference and relationship between Mr H and his son, and the offending had to be halted by the intervention of Mr H’s wife, the son’s mother. The act occurred not once, but twice over consecutive evenings. Mr H was abusing a position of trust and authority in relation to his son,34 and his son was particularly vulnerable due to his age.35 However, the strangulation was transitory, and the harm was not enduring. His son was left without any physical bruising or injury. I regard this as lower-level offending on the spectrum of strangulation cases.36

[25]	I consider there are significant personal mitigating factors as follows.

[26]	First, that the offending occurred in the context of a serious deterioration in Mr H’s mental health. A report from a forensic clinical psychologist, Nev Trainor, dated 2 February 2024, contains the following conclusions:

29.	Mr H’s offending appears to have been a result of a difficult and stressful period of his work life since around 2020 when COVID impacts caused major shifts in the way he was expected to perform his work as a lecturer and tutor. He found the adjustment difficult and experienced his manager as unsympathetic and even bullying. Mr H, who has been a regular

32 DC (CA47/13) v R [2013] NZCA 255 at [35]. As the Court held in Mathieson v Police [2019] NZCA 406, it is not possible to properly assess the seriousness of the offence without taking into account all the aggravating and mitigating factors relating to the offence and the offender.
33 See Shramka v R [2022] NZCA 299 at [14]–[29] for the legislative history of the offence of strangulation under s 189A of the Crimes Act 1961.
34	Sentencing Act 2002, s 9(1)(f).
35	Section 9(1)(g).
36	See, by contrast, the highest level and moderate level s 189A offending noted in Shramka v R,
above n 33, at [46]–[53] which involve significantly greater aggravating factors.

consumer of alcohol, cannabis, and tobacco, turned to these substances in a bid to cope with his mounting stress. His potentially biologically predisposed vulnerability toward depression was likely exacerbated by these circumstances, especially once he resigned from his job and financial stressors then also became an ongoing issue.

30.	Mr H’s self-image as someone who had “never failed” will have been destabilised by these events and his reliance on his wife to support him. He likely struggles with perfectionistic tendencies and his reduced control of his environment and circumstance will have aggravated his mood and anxiety difficulties whilst continued abuse of alcohol created a vicious cycle. No doubt exacerbating all of this was a stroke in early July 2023 and what may have been an adverse reaction to mood medication which caused nausea and added confusion and agitation for Mr H. His index offences have occurred within the context of unstable mental health which at times has deteriorated to the point of him becoming acutely stressed, delusional, and perhaps psychotic, requiring inpatient admission to stabilise.

(Emphasis added).

[27]	It is evident from Dr Trainor’s report that Mr H suffers from mood instability, anxiety, and is predisposed to depression, which when combined with his alcoholism, and mounting external stressors, contributed to his offending. As already noted, prior to the offending Mr H had twice been admitted to ward 21, the mental health ward at Palmerston North Hospital, and shortly following the offending he was admitted for a third time for his deteriorating mental health. He was diagnosed with Bipolar Effective Disorder on this final admission. The report details serious mental health and substance addiction issues. I consider Mr Trainor’s evidence establishes a clear causative link between these issues and the offending. At age 55, Mr H had never offended violently before and has only done so in close proximity to periods where he was so acutely unwell that he required inpatient hospital treatment. It is well- established that serious mental health issues with a causative link to offending is a significant mitigating factor.37

[28]	Second, Mr H’s rehabilitative efforts and prospects of rehabilitation. Mr H reported to Mr Trainor that he had stopped consuming alcohol from late 2023, consistent with Mr H’s report to Mr Trainor that he was his normal self again. There is a non-violence programme completion report before the Court confirming Mr H attended 13 sessions in a non-violence programme. At [9] of Mr H’s affidavit, he deposes he was engaged with Mash Trust and Maline rehabilitative programmes. He

37	E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [71]–[83].

also attended a restorative justice conference on 13 November 2023 confirmed by a report dated 15 November 2023. These rehabilitative efforts, Mr H’s otherwise good character (which I will return to below) and compliance with home detention make the prospect of full rehabilitation very high. I therefore consider Mr H’s rehabilitation efforts and prospects of rehabilitation to be significant mitigating features.

[29]	Third, Mr H’s remorse. This is evident in the material before the Court including the summary of  facts,  the  restorative  justice  report,  the  PAC  report,  Dr Trainor’s report, and Mr H’s affidavit. Mr H apologised for his offending immediately and has consistently demonstrated his shock and remorse about his actions. I accept Mr H’s remorse is genuine, which is consistent with the fact that he pleaded guilty at an early stage.

[30]	Fourth, Mr H’s prior good character is a mitigating factor. This is not merely an absence of an aggravating factor but requires recognition as a mitigating factor.38 Mr H has lived a law-abiding life, in constant employment, having occupied various roles as a teacher, and in public service roles, as well as obtaining a PhD in English literature. He worked at Massey University for 10 years until the end of 2022, when he resigned, following which he taught English to adults, mainly refugees, at an education institute. As already noted, there is some historic low-level dishonesty offending but, given it occurred when Mr H was 19 years of age, the Judge was right to effectively treat him as a first offender.

[31]	Finally, the views of the victims are relevant in assessing the gravity of the offending in this case, as the victims are able to shed light on the extent of the effect of the offending on them.39 Mr H’s son’s statement notes that after the incident he was not hurt, sad or angry, but a little bit shocked and that after the incident they both apologised and moved on. He notes he now understands it was probably because Mr H was suffering from mental health problems at the time and was frustrated with his work and money situation. Mr H’s wife says that the incident caused herself and her son shock, as he had never abused her son before, and he loves his son and they had a

38	Manawaiti v R [2013] NZCA 88; and Rana v R [2014] NZCA 468.
39	Cain v Police [2017] NZHC 2577.

close bond. The evidence indicates that Mr H has maintained a close relationship with his son and wife, and they have forgiven him for his offending.

[32]	Overall, I consider these factors significantly reduce the gravity of the offending.

The consequences of a conviction

[33]	I turn to the direct and indirect consequences of a conviction. There must be a “real and appreciable” risk that any given consequence will occur.40

[34]	Mr H deposed in his affidavit that his employment as a teacher, mainly to adult refugees at the ETC English Language School ended due to his manager becoming aware of the charges. As this was a consequence of the incident occurring and being charged, I accept the Crown’s submission that this was not a direct consequence of conviction.

[35]	However, Mr H has also filed an updating affidavit attaching an email dated 16 July 2024 from a prospective employer, which shows that he was not offered a job on the basis of the results of a police vet. I expect most tertiary or education institutes will require a police vet before employing a teacher. Mr H’s police history, including any discharge without conviction, will feature on a police vet where relevant to Mr H’s suitability for the proposed employment or occupation.41 Thus, potential educational institute employers becoming aware of the offending will not be a consequence of conviction, but rather a consequence of the offending itself.42

[36]	However, I accept that Mr H will inevitably face greater difficulty in finding suitable employment in his chosen profession with a conviction for strangulation and assault, than he would if he receives a discharge without conviction.

40 DC (CA47/2013) v R, above n 32, at [43]; and Prasad, above n 30, at [11].
41 A police conviction check would only result in convictions being disclosed, but police vetting discloses all relevant police contact, including matters resulting in a discharge without conviction: Puriri v Police [2018] NZHC 1682 at [15]; and Parker v Police [2016] NZHC 2424 at [22].
42 Mathew Downs (ed) Adams on Criminal Law –– Sentencing (online ed, Thomson Reuters) at [SA107.03]; Irvine v Police [2024] NZHC 1231 at [25].

[37]	While each case turns on its own facts, Mathieson v New Zealand Police assists.43 In that case Mr Mathieson pleaded guilty to charges of threatening to kill and male assaults female, for grabbing his partner’s jaw with both hands, twice, causing visible bruising to her neck and chin.44 The offending was initially graded as moderately serious, but the overall gravity was significantly reassessed to a “low seriousness” in view of Mr Mathieson’s personal factors.45 In terms of consequences, the Court said:

[19] We consider that it is important in the present case not to over analyse the employment contract, and whether a termination process is triggered by a charge or a conviction. What can be said is that the contract provides evidence that the employer considers an employee’s engagement with the criminal justice system as a defendant is relevant to their job. There is an obvious risk it will lead to a review of the employment. We consider it can be fairly inferred that within this process a conviction will be seen as more significant than a charge. Thus, there is a real and appreciable risk that a conviction will impact on Mr Mathieson’s employment status. Beyond that we cannot go, but in these situations, courts usually cannot say more.

[38]	Mr Mathieson’s stable employment was likely to be in jeopardy, whereas in the present case, Mr H is currently seeking employment in the teaching profession (he is currently working as a cleaner). Although a discharge without conviction would very likely be disclosed on a police vet, it would signal to a prospective employer that his overall behaviour was not of such gravity that it warranted a conviction. In line with the approach in Mathieson, Asher J observed in Alshamsi v New Zealand Police, that a discharge without conviction is an “indication to the outside world that the Court did not consider that a conviction was warranted. It can be seen as an expression of confidence in an offender by the Court.”46 Accordingly, I consider there is a real and appreciable risk that Mr H’s employment prospects will be impacted by a conviction.

[39]	The obvious flow-on consequence of Mr H’s strained ability to access employment opportunities in his chosen field, is financial hardship to him and his family. This serves to re-victimise the victims of his offending, who he would otherwise be in a position to provide for financially. I note their victim impact statements expressly state they do not want Mr H to have a conviction for this very

43	Mathieson v New Zealand Police,, above n 32. See also Northover v Police [2020] NZHC 167.
44	At [2] and [5].
45	At [15]–[17].
46	Alshamsi v New Zealand Police HC Auckland CRI-2007-404-000062 (15 June 2007) at [25].

reason. And his wife’s statement details the considerable financial burden that has been placed on the family as a result of Mr H not working as a teacher.

[40]	I also do not dismiss the general impacts and public stigma of a conviction for a 55-year-old who has led an otherwise blameless adult life and is very unlikely to reoffend.

[41]	In Northover v New Zealand Police, a grandfather pleaded guilty to three representative charges of assault on a child for assaulting his three grandchildren by hitting them on their arms, legs, hands, and buttocks with household items such as a wooded spoon.47 The possible threat to his employment and the impact of a conviction on his mana in the community were held to be out of all proportion to the gravity of the offending. Brewer J said:48
The convictions are a public declaration that his offending is so serious that, despite all he has achieved in life, Mr Northover must forever bear the stigma of being a criminal. I accept that discharges without conviction would have a desirable and appropriate rehabilitative effect on Mr Northover.

[42]	The same observations can be made of Mr H’s circumstances.

[43]	As Mallon J noted in Nash v New Zealand Police, people can be asked to disclose convictions in a variety of ways (including employment, insurance, immigration) and for those who are remorseful it can cause a loss of pride and self- esteem.49 For Mr H, a consequence of conviction will not only be that conviction for this offending will appear on a standard conviction check, but his historical dishonesty convictions will also reappear on his conviction history when they would not otherwise have done so (due to the operation of the Clean Slate legislation).50

47	Northover v New Zealand Police, above n 43.
48	At [45].
49	Nash v New Zealand Police HC Wellington CRI-2009-485-000007 (22 May 2009) at [19].
50	Criminal Records (Clean Slate) Act 2004, s 8

Proportionality

[44]	I must consider whether those consequences are out of all proportion to the gravity of the offending.51 The Court in Mathieson said:

[21] ... There is no basis to consider Mr Mathieson offers any risk of reoffending; to the opposite effect, the signs are that he is now a person with insight into his actions who has taken considerable steps towards addressing the causes of his offending. Given the overall low culpability, we consider the impact of a conviction for male assaults female and threatening to kill on a 41 year old in stable employment and who is effectively a first offender would be out of all proportion.

[45]	Similarly, I undertake the balancing exercise from the position that the compelling personal mitigating features present reduce the overall gravity of Mr H’s offending to a low level of culpability.52 I should add that I have reached this conclusion by a narrow margin given the seriousness with which the courts view strangulation. But I have arrived at it due to the offending being at the lower end of the spectrum of strangulation cases and the powerful personal mitigating features present.

[46]	Mr H does not present any material risk of reoffending, he has made significant progress by engaging in rehabilitation to address the causes of his offending, and has maintained sobriety. The only people realistically at risk from further offending, his family, fully support him, maintain a close relationship with him and do not want him to be convicted to safeguard his ability to support them financially. His offending was inextricably linked to an acute deterioration in his mental health, and he was effectively a first offender who has led an otherwise productive and blame-free life. I consider that the risk posed by a conviction to employment prospects in his field, the impact this will have on the victims, and the general impacts and public stigma of conviction, are out of all proportion to the gravity of the offending.

51	R v Smyth [2017] NZCA 530 at [12].
52	See similarly in Mathieson v Police, above n 32, at [21].

Conclusion

[47]	I therefore find the refusal by the District Court to discharge Mr H without conviction was wrong. It is therefore unnecessary for me to consider Mr H’s appeal against sentence.

[48]	The appeal against conviction is allowed.

[49]	The convictions for assault and strangulation are quashed. The appellant is discharged without conviction on both charges.

La Hood J

Solicitors:
Crown Solicitor, Palmerston North for Respondent