IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2013-563-000090 [2014] NZHC 282

NICHOLAS DUNCAN COOK

v

NEW ZEALAND POLICE

Hearing:	25 February 2014

Appearances:	T Barclay for the Appellant
A Hill for the Crown

Judgment:	25 February 2014

[ORAL] JUDGMENT OF WYLIE J

COOK v POLICE  [2014] NZHC 282 [25 February 2014]

Introduction

[1]       The appellant, Mr Cook, appeals against a decision of Judge JF Munro, given in the District Court at Rotorua on 14 November 2013.   Judge Munro declined to grant Mr Cook a discharge without conviction in relation to a charge of male assaults female.

Background Facts

[2]       Mr Cook and his partner (the victim in this matter) were living together in a domestic relationship.  They had been living together for some time and they have one child.

[3]       At approximately 3.30 am on 5 June 2013, Mr Cook arrived home.  He had been drinking.  Mr Cook’s partner woke up to attend to their baby.  She found that Mr Cook was home.  Her aunty was also present.  She went into the room and sat on the couch, talking to her aunty.   Mr Cook was squatting by a wall nearby.   The partner got up to say goodbye to her aunty, and in doing so, squeezed through the gap between the furniture and Mr Cook.  As she went through the gap, Mr Cook lifted his knee and kneed his partner to the left side of her mouth.  Mr Cook then stated, “Shouldn’t I just kick you in the head”.   The partner did not receive any injuries as a result of the assault.

[4]       The offending did not surface promptly.  Rather, it came to light some three weeks later, when the police attended at the couple’s property in relation to another incident.

[5]       When the offending came to light, Mr Cook cooperated with the police.  He accepted that he had assaulted his partner on 5 June 2013 and he promptly entered a guilty plea to the charge.   He was referred to Mana Social Services and he went through the restorative justice process.   That process was successful.   The report from the restorative justice conference records that Mr Cook had little or no recollection of the assault on his partner, but that he accepted that he had been guilty of the offending.  He expressed remorse and apologised profusely when he realised what he had done.   His partner did not consider that it was necessary for him to

attend any anger management counselling.  He promised to never offer violence to her again.  She accepted that this promise was sincere and she expressed the view that there is no likelihood that the offending will be repeated.  The partner requested that any sentence should not be too harsh and in particular, that Mr Cook should not receive a sentence of imprisonment.

District Court Judge’s Decision

[6]       As noted, the matter came before Judge Munro on 14 November 2013.  She recorded the background facts and that the restorative justice process had succeeded. She noted that Mr Barclay, appearing for Mr Cook, had filed an application seeking a discharge without conviction under s 106 of the Sentencing Act 2002.  She recorded the basis on which such a discharge could be ordered – referring to the requirements set out in s 107 of the Act.  She noted that Mr Cook was 19 years of age, that he had no previous convictions, and that he had not been before the Court before.   She expressed the view that these matters were not, in themselves, factors for her to consider under s 107.   She accepted that the effect of a conviction on Mr Cook’s future employment prospects was a matter that could be taken into account.   She referred to Mr Cook’s particular employment circumstances and she acknowledged that a conviction might affect his future prospects.  She also noted the attitude of the community towards domestic violence.  She considered that it is a real problem in the Rotorua community, and elsewhere, and that such offending is something that has to be taken seriously and treated seriously.

[7]       The Judge concluded that there was nothing which put Mr Cook’s situation out of the normal run of matters and she declined to accept the argument advanced on Mr Cook’s behalf that the consequences of the offending were out of proportion to its seriousness.  She considered that Mr Cook’s offending was serious, and that he needed to “wear the consequences” of that.  The application for a s 106 discharge was declined.  Mr Cook was convicted and ordered to appear for sentence if called upon within a period of six months.

Submissions

[8]       Mr Barclay has updated the factual circumstances.  He advises that Mr Cook and his partner are still together.  There has not been any further offending.  Further, Mr Cook has filed an affidavit.  He has enrolled in a farming course at the Waiariki Polytechnic.  That course has just started, and it is due to conclude on 14 November
2014.   He has applied for some four jobs.   One employer requested his criminal background.  Mr Cook supplied that information.  The prospective employer did not take his job application any further.

[9]       Mr Barclay submitted that the offending in issue was not particularly serious. While acknowledging that domestic violence needs to be treated seriously by the courts, he submitted that, even in this context, Mr Cook’s offending was at the lower end of the scale.  He argued that a conviction does close off some job prospects for Mr Cook.  In this regard, he noted that Mr Cook holds certificates in welding.  He submitted that the consequences of a conviction are disproportionately severe, given the low-level nature of the offending.

[10]     Mr Hill, for the Crown, took issue with the assertion that the offending was not serious.  He argued that the offending, whilst not at the top end, was reasonably serious offending of its kind, in that it involved Mr Cook kneeing his partner in the left side of her mouth.   He accepted that the conviction could well have adverse effects on Mr Cook’s  future employment prospects.   He acknowledged that this appeal really turns on an assessment of the gravity of the offending, as against its acknowledged adverse effects.

Analysis

[11]     Relevantly, s 106 of the Sentencing Act 2002 provides as follows:

106	Discharge without conviction

(1)        If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

(2)	A discharge under this section is deemed to be an acquittal.

…

[12]     Section 107 in turn provides as follows:

107      Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[13]	As can be seen, the later section requires consideration of three factors: (a)	the gravity of the offence;
(b)       the direct and indirect consequences of a conviction; and

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

[14]     If the court is satisfied the s 107 threshold is met, the court then has a discretion to discharge under s 106.  However, a favourable outcome under the s 107 test will generally lead to a favourable exercise of the s 106 discretion.

[15]     An appeal against a refusal of a discharge without conviction is by way of rehearing with the appellate court making a judicial assessment in accordance with its own opinion. As the Court of Appeal noted in R v Hughes:1

[11] The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles… The discretionary power of the court to discharge without conviction under s 106 arises and exists only if the court is satisfied that the s 107 threshold has been met.

[16]     Sections 106 and 107 have recently been considered in two decisions of the Court of Appeal.  I refer to Z v R2 and DC v R.3   In these cases, the Court clarified the approach to be taken as part of the first step under the s 107 process – namely
assessing the gravity of the offending.  The Court made it clear that in doing so, all

1	R v Hughes [2009] 3 NZLR 222.
2	Z v R [2013] NZAR 142.
3	DC v R [2013] NZCA 255 at [30]–[35].

aggravating and mitigating factors relating to both the offending and the offender should be taken into account.

[17]     Here, it appears that Judge Munro did not follow this approach.  Rather, she held that circumstances personal to Mr Cook were not factors she was required to consider under s 107.   However, she did take into account these factors when she was considering the balancing process  required  by the third step.    I accept the submission made by Mr Hill that, in the circumstances, it makes little difference.4
Further, Judge Munro stated that the matters set out in ss 7–10 of the Sentencing Act

are relevant when considering the s 107 guidelines. Again, I do not consider that this is correct.  The Court of Appeal has made it clear that the purposes and principles of sentencing  identified  in  ss  7  and  8  are  relevant  when  exercising  the  residual discretion conferred by s 106.5

[18]     I turn now to consider the gravity of Mr Cook’s offending.

[19]     The blow which he struck was struck with the knee.  The blow was to the mouth, or head, of his partner.  It was an assault in a domestic context, following on from heavy drinking.   Further, the assault was accompanied by a further verbal threat. These are all aggravating features.

[20]     There are, however, a number of mitigating features, both to the offending, and in relation to Mr Cook.  In relation to the offending, I note that there was only one blow. There is nothing before me as to the force of the blow, although I note that the partner did not suffer any injury.  It appears that the offending was one off and isolated.  It was not immediately brought to the attention of the police.  Presumably, the partner did not consider that it was very serious.  Turning to factors personal to Mr Cook, first, there is his age.   He was only 19 years’ old at the time of the offending.    Further,  Mr Cook  has  no  prior  or  subsequent  convictions.    He  has expressed considerable remorse.  He has the forgiveness of his partner, and it seems that he is otherwise of good character.  Mr Cook readily admitted the offending to
the police, and promptly entered a guilty plea.  He participated in a restorative justice

4	And see, Z v R, above n 2, at [28].
5	Blyth v R [2011] 2 NZLR 620 at [11] and [12].

conference, and that conference was successful.   I also note that the domestic relationship has continued, and that there have been no further incidents between the parties.

[21]     In my view, the offending was relatively minor.  I accept the point made by Judge Munro that courts must not condone domestic violence, and that domestic violence is a real problem in New Zealand society.  However, the Court is required to consider the  gravity of the offending committed, not the  gravity of other cases involving the same offence.6    I do not consider that this offending was particularly serious.

[22]     I now turn to the direct and indirect consequences of the offending.

[23]     I share the observations made by Allan J in Tahitahi v Police.7    His Honour there noted:

[25] I have no difficulty in accepting that, nor do I have any problem with the general submission that, in a difficult job market, the appellant’s quest for employment is likely to be rendered even more difficult if she has these convictions on her record…

[24]      There is no doubt that employment difficulties may be taken into account if it can be shown that adverse consequences are likely to flow from a conviction.

[25]     As I have already noted, Mr Hill for the Crown, responsibly accepted that the fact of a conviction is likely to have consequences for Mr Cook, at least in relation to some areas of employment.

[26]     The words “is satisfied” in s 107 mean that the Court is required to make up its mind on reasonable grounds.  It does not require proof beyond reasonable doubt. Further, the Court does not need to be satisfied that “the identified directions and consequences would inevitably or probably occur”.   It is sufficient if the Court is satisfied that there is “real and appreciable risk that such consequences will occur”.8
Having considered the circumstances and the affidavit filed by Mr Cook, I accept

6	Z v R, above n 2, at [31].
7	Tahitahi v Police [2012] NZHC 663 and see also [27].
8	Alshamsi v Police HC Auckland CRI 2007-404-62, 15 June 2007 at [20]

that there is a real and appreciable risk that his employment prospects are likely to be adversely affected if the conviction remains on his record.

[27]     I now turn to the proportionality assessment required.

[28]     While the matter is finely balanced, in my view, given the comparatively minor nature of the assault in this case, and the likely consequences of the offending, the  consequences  of  a  conviction  are  out  of  proportion  to  the  gravity  of  the offending.   Mr Cook is a young man.   He and his partner are in an ongoing relationship.  They have a child.  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 consequence 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 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 this matter.

[29]     I  consider  it  appropriate  to  exercise  the  discretion  vested  in  the  Court pursuant to s 106 of the Act, and to order that Mr Cook be discharged without conviction.   Given the success of the restorative justice process, and  the views expressed by Mr Cook’s partner, I do not consider that any of the orders envisaged by s 106(3) are necessary or required.

[30]     The appeal is allowed.  The suspended sentence imposed by Judge Munro is vacated, and Mr Cook is discharged without conviction, pursuant to s 106.

Wylie J