IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-0001 [2015] NZHC 165

CARMEN STEWART

v

NEW ZEALAND POLICE

Hearing:	10 February 2015	

Appearances:	
L Johnson for the Appellant
L M Mills for the Respondent	

Judgment:	
13 February 2015	

JUDGMENT OF THOMAS J

This judgment was delivered by me on 13 February 2015 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Public Defence Service, Auckland. Meredith Connell, Auckland.

STEWART v NEW ZEALAND POLICE [2015] NZHC 165 [13 February 2015]

Introduction

[1]       On 27 June 2014, Ms Stewart assaulted her uncle with a wine glass.   She pleaded guilty to one charge of injuring with reckless disregard for safety pursuant to s 189(2) of the Crimes Act 1961 and applied for a discharge without conviction. This application was declined on 19 December 2014 and Ms Stewart was convicted and sentenced to 12 months' intensive supervision and 80 hours' community work.

[2]       Ms  Stewart  now  appeals  against  the  decision  to  refuse  her  a  discharge without conviction.

Relevant Facts

[3]       On 27 June 2014, following a funeral, Ms Stewart was at a family function at the address of a relative. The victim, Ms Stewart's uncle, was also present.

[4]       During the function, Ms Stewart confronted her uncle about why he had not been speaking to her.   He told her that it was because of something which had happened earlier and that she should know what that was.   She became angry and said "I am going to kill you Grub" and hit him in the face with her wine glass.  There was enough force in the blow to shatter the glass.

[5]       As a result of the assault, the victim suffered two cuts to his head and neck.

[6]       Ms Stewart has two previous convictions, one for assaulting a police officer

(convicted in 1999) and one for receiving stolen property (convicted in 1993).

District Court Decision

[7]       Ms Stewart pleaded guilty to one count of injuring with reckless disregard and applied for a discharge without conviction.

[8]       In determining the application, the Judge considered the fact that the assault involved the use of a weapon, it was directed towards the head and that the injuries

were relatively serious as well as the threat to kill which accompanied the assault. His Honour concluded that the offending was at least moderately serious.

[9]       Against this, the Judge considered the impact on Ms Stewart's application to work for the Department of Corrections.  He formed the view that the Department should be allowed to make up its own mind about the consequences of the offending and that the likely consequences for Ms Stewart did not outweigh the seriousness of the offending.

Appellant’s Submissions

[10]    Ms Johnson, for the appellant, submits that the Judge overestimated the seriousness of the offending.  In particular, the appellant submits that the assault did not include intention to cause harm and that Ms Stewart merely intended to slap her uncle with the glass in her hand, and did not intend to attack him with it.   Some weight is also placed on the stress Ms Stewart had been experiencing at the time, which may have contributed to her offending.

[11]     Ms Johnson also submits that the Judge did not give adequate weight to the fact that Ms Stewart attempted to  engage in restorative justice.1     The appellant submits  that  this  undermines  the  probation  advice  that  Ms  Stewart  was  not remorseful.

[12]     Finally, Ms Johnson submits that working for the Department of Corrections has been a goal of Ms Stewart for some 15 years, and that a recent conviction for violence is  likely to  prevent  her  application  from  succeeding.   As  a  result,  the appellant submits that the consequences of the conviction will be severe.

[13]     Ms Johnson relies on Tupu v Police.2  In that case, Ms Tupu was granted a discharge without conviction for injuring with intent to injure, in order to allow Ms Tupu to pursue a career in the Air Force.  In Ms Johnson’s submission, the offending in that case was more serious than the present case, but that the consequences are of
a similar level.

1	The victim elected not to participate in restorative justice.
2	Tupu v Police [2014] NZHC 743.

Respondent’s Submissions

[14]     For the respondent, Mr Mills submits that the Judge was correct to conclude that the consequences of the offending were not out of all proportion to the seriousness of offending.   He seeks to distinguish Tupu on the grounds that the appellant in that case had demonstrated genuine remorse and had successfully completed restorative justice; and the consequence in that case was the loss of a career that had been a childhood dream.   He submits that those factors are not present in this case.

[15]     Mr Mills  also  opposes  the appellant's  attempts  to  redefine  the offending submitting that if she had disagreed with the summary of facts that challenge should have been brought at an earlier stage.

Discharge without Conviction

Approach to appeal

[16]     Section  106  of  the  Sentencing  Act  2002  grants  the  court  discretion  to discharge an offender without conviction. This discretion is subject to the test in s
107 being satisfied. That test provides:

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.

[17]     When the s 107 test is met, the court then has a discretionary power to discharge under s 106, however when the test is satisfied this will usually result in a discharge.

[18]     An  appeal  against  a  refusal  of  discharge  is  subject  to  normal  appellate principles; the court will make a new assessment in accordance with its own opinion. The Court of Appeal in R v Hughes concluded that as the s 107 test is not  a matter of discretion, an appeal against the court’s decision on this matter is not an appeal

against discretion.3 An appeal against discretion would only arise if the court held that s 107 was satisfied but nonetheless chose not to discharge the offender.

[19]     The approach to be followed in applying the s 107 test is set out in Z v R

where Arnold J held:4

... when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge...

[20]   What this approach requires is that the Court must first determine the seriousness of the offense, having regard to both the aggravating and mitigating factors of the offence and also to those factors which apply to the offender. The Court should then determine the direct and indirect consequences of conviction and determine if they are out of all proportion with the offending.

Analysis

Seriousness of the offending

[21]     In determining this appeal it is necessary to follow the three step approach set out in Z v R. First it is necessary to consider the seriousness of the offending.

[22]     The offending in this case involved an assault to the head with an improvised weapon.   The injuries suffered were not negligible.   It is easy to envision a more serious assault, but the fact remains that this was a violent attack.   Ms Stewart pleaded guilty to the summary of facts. That states:

The defendant became very aggressive and persistent in her questioning and stood face to face with the victim.

All of a sudden, the defendant said “I’m going to kill you Grub.” And thrust her wine glass at the victim’s face.

3	R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222 at [11].
4	Z v R [2012] NZCA 599, [2013] NZAR 142 at [27]

The wine glass struck him on the left side of his face with such force that it caused the glass to smash.

[23]     The  fact   that   the  glass   smashed   on   contact   with   the  victim’s   face

demonstrates that relatively significant force was used by Ms Stewart.

[24]     Ms Stewart pleaded guilty and offered to attend restorative justice.   The victim was not willing to participate, as was his right.  Weighed against that was the assessment by the Probation Officer, after having interviewed Ms Stewart, when he said:

She admitted that she deliberately pushed the glass into the victim’s face during an argument but denied threatening his life.   She did not appear to have any empathy for victim (sic) preferring to focus on his shortcomings. Although she expressed remorse for the offending this remorse appeared to stem from the consequences of her actions rather than the offending itself.

[25]     The Probation Officer assessed Ms Stewart as being a low risk of further offending given her brief criminal history.  She was, however, assessed as being at medium risk of harming another person given the “serious violent nature of this offending”.

[26]     Therefore, while some weight can be given to Ms Stewart’s offer to attend restorative justice, this must be balanced by the comments in the pre-sentence report. I take into account that there have been some rehabilitative efforts made by Ms Stewart and note the letter from her counsellor and community support worker in this regard.

[27]     Taking all those factors into account, I classify the offending as moderately serious.

Consequences

[28]     It is not unusual for persons requesting discharge without conviction to do so on the basis that it will make it harder for them to find employment. In Amstad v Police Whata J held that the relatively serious offending in that case (including the taking of a motor vehicle and drunk driving) was out of all proportion to the consequence  that  Mr  Amstad  would  be  completely  barred  from  fulfilling  his

aspirations and joining the army.5   Similarly, in R v Tahitahi, Allan J considered that the difficulty that Ms Tahitahi would have in finding work was out of all proportion to her offending,6  given particularly the fact that she had been on a benefit seeking work  for  twelve  months.7      The  offending  involved  throwing  a  rock  at  her  ex- partner’s car window and breaking it as he drove out of the driveway.8  In that judgment, Allan J accepted that the risk of difficulty securing employment was a
general consequence of a criminal conviction but held that it was still relevant. In doing, so he relied on the decision in Nash v Police where Mallon J observed that general consequences, including effects on employment, insurance and immigration, could all be weighed in the balance.9

[29]     It is relevant to note that ultimately the consequences that a conviction will have on Ms Stewart's job application depends on the view which the Department of Corrections takes of the matter.  In this context it is pertinent to note the observations made by Asher J in Zhang v Ministry of Economic Development that:10

[14] In relation to a conviction affecting an offender’s immigration status, or indeed ability to travel overseas, the courts often conclude that it is appropriate for the consequences of conviction to be resolved by the appropriate authorities, rather than the Court attempting to pre-empt that decision-making process by a decision to discharge without conviction. … There is nothing that requires the courts to intervene to try and impose their perception of what the right immigration consequences should be.  That is best left to the immigration authorities.   But a Court’s assessment of culpability in the sentencing exercise may assist those authorities. And there will always be occasions where in a finely balanced case a discharge may be warranted on these types of grounds. … The case for discharge may not be so strong where the details of the offending will be known and closely examined by the relevant authority in any event, than where the query will be only as to prior convictions, for instance in an application for professional certification.

[30]     As such, the court should be hesitant to usurp the role of a professional body or a particular employer to decide the significance of a particular conviction.

5	Amstad v Police HC Auckland CRI-2011-404-161, 6 September 2011 at 28.
6	Tahitahi v Police [2012] NZHC 663 at [31].
7	At [23].
8	At [4].
9	Nash v Police HC Wellington CRI-2009-485-7, 22 May 2009 at [19].
10	Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011.

[31]     Ms Stewart is awaiting the outcome of a job application with the Department of Corrections.  The consequences of conviction are likely to be that she will not be employed although this is not a foregone conclusion.  The correspondence from the Department of Corrections states that a criminal conviction will not necessarily bar an applicant and it depends upon the nature of the offence and type of job applied for.  Applicants with a criminal record for violence will not usually be considered.  I understand that Ms Stewart has disclosed the offending to the Department and accept she is, therefore, not attempting to conceal her behaviour.  This reinforces the fact that the question of whether or not to employ Ms Stewart is ultimately one for the Department of Corrections.   It is apparent that a fact of a conviction will not automatically disqualify a job applicant.  Rather the Department of Corrections will consider the nature of the offence.  That reinforces my view that it is the offending itself which is effectively the issue rather than the fact of a conviction.

[32]     I do not overlook the fact that the conviction means that Ms Stewart will not have the benefit of the Criminal Records (Clean Slate) Act 2004 in respect of her conviction in 1998 for assault of Police and 1992 for receiving.  Those convictions are, in any event, a relevant consideration in an application such as this.   In other words,  Ms  Stewart  is  not  someone  who  comes  to  the  Court  with  no  prior involvement in the criminal justice system.

[33]     Against this background, I consider that the consequences, while relatively serious, would not be out of all proportion to the seriousness of the offending.

Result

[34]     The appeal is dismissed.

Thomas J