IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-177 [2013] NZHC 2478

BETWEEN	THOMAS EMERSON RALPH Appellant	

AND	
NEW ZEALAND POLICE Respondent	

Hearing:	17 September 2013	

Appearances:	
P L Borich for the Appellant
R J Y See for the Respondent	

Judgment:	
20 September 2013	

RESERVED JUDGMENT OF PRIESTLEY J

This judgment was delivered by me on Friday 20 September 2013 at 3.15 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel/Solicitors:
P L Borich, Rice Craig, Papakura
R J Y See, Crown Solicitor, Auckland

RALPH v NEW ZEALAND POLICE [2013] NZHC 2478 [20 September 2013]

Introduction

[1]       The appellant was convicted (having pleaded guilty) on a charge of common assault.  No penalty was imposed.  In a careful oral judgment dated 22 May 2013,1 delivered in the North Shore District Court, Judge Ronayne declined to discharge the appellant without conviction under s 106 of the Sentencing Act 2002.  This appeal challenges that refusal.

The facts

[2]       The circumstances of the offending were unusual.  Both the appellant and the complainant were guests at an indoor party in July 2012.  The atmosphere was undoubtedly festive.  Guests were participating in a “limbo” game or dance.  A stocking was used instead of a pole.  One end of the stocking was attached to the appellant’s clothing.  As the victim passed underneath she toppled backwards and presumably clutched or fell against the stocking with the result that both she and the appellant fell on the floor. The appellant’s forearm was (accidentally) pushed against the victim’s throat blocking her airway. The victim panicked because she could not breathe and bit the appellant hard on his upper arm.  The appellant’s reaction was to punch the victim’s head twice on the right side of her face.  She suffered from pain, swelling, and bruising.  The physical and psychological effects of this encounter remained with her for some time.

[3]       It is common ground that the first punch (like the bite) was instinctive.  The second punch, however, was regarded as an over-reaction and led to the assault charge.

[4]       Initially the appellant was charged under s 194(b) of the Crimes Act 1961 of being a male assaulting a female.  The charge was subsequently downgraded to common assault (s 196) to which the appellant pleaded guilty.

[5]       At  all  stages  the  appellant  was  co-operative  with  the  police,  expressed genuine remorse, and was distressed. He was a first-time offender.

1	New Zealand Police v Ralph DC North Shore CRI-2012-044-005333, 22 May 2013.

Professional ramifications

[6]       The appellant practises as a physiotherapist in Northland.   As such he is subject to professional oversight by the Physiotherapy Board of New Zealand (the Board).  The complainant too is a physiotherapist.  Although a citizen of the United Kingdom (to which she has now returned) she was at the time resident and practising in New Zealand.

[7]       Of her own volition, and many months before a guilty plea was entered, the victim laid a complaint with the Board.   The Board notified the appellant of this action in early October 2012 and sought input from him.  There is to be a hearing before a Professional Conduct Committee (the Committee) of the Board later this year.

[8]       At the time the complaint was lodged by the victim the appellant faced the more serious charge of male assaults female.  The victim’s professional concern is clearly articulated in one of the victim’s victim impact statements where she says:

I feel that as Thomas Ralph is a physiotherapist he is expected to act as a responsible member of the health profession.  As he has obviously breached this ethical code of conduct, I feel he should be held accountable not only in the Court but also by the New Zealand Physiotherapy Board.  A discharge without conviction would obviously mask the seriousness of this crime in the eyes of [the Board] otherwise his defence team would not be applying for it.

[9]       The victim also comments that if she was being treated by a physiotherapist and found out he had beaten up a woman she would be fearful and horrified.

Why did the Judge refuse a s 106 discharge?

[10]     In the District Court the Police opposed a s 106 discharge.  It was submitted the offending was moderately serious, alcohol fuelled, and obviously involved some degree of anger.  It was also submitted that the effect of the assault on the victim was moderate to serious.  I agree with this latter submission.  It is not necessary for me to detail the victim impact statement.  Suffice to say the victim was both sore and distressed for a considerable period of time. The unhappy experience was one of the factors which led her to return to the United Kingdom.

[11]     The Judge identified a three-step approach which needed analysis.  The first was  the nature of the offence and  its gravity.   The second was  identifying (as required by s 107) the direct or indirect consequences of a conviction. The third was to decide whether the consequences of the conviction would be out of all proportion to the gravity of the offending.2

[12]     At [9] of his decision the Judge referred to the 12 month maximum sentence and indicated that this placed the offending in the “moderate range of criminal offences, just by its inherent nature”.   The Judge then went on to describe the offending and various mitigating factors which in his view (at [12]) “might decrease the gravity of the offending”.  He then concluded at [15] his overall assessment of the gravity of the offending was “low to moderately serious”.   There has, as Mr Borich correctly submits, been some truncation or conflation of the Judge’s assessment of the first step.  The gravity of the offending (which would traditionally require an assessment of culpability) is not really influenced by mitigating factors such as (in this case) the early guilty plea, the offer of restorative justice, and various steps which the appellant took by consulting doctors and others to ascertain whether his offending might have some underlying cause.  Mr Borich submitted that this was an error of law which would justify this Court re-assessing the exercise of the Judge’s discretion.

[13]     The  Judge  then  turned  to  the  direct  and  indirect  consequences  of  the conviction.  He identified three areas, which were repeated on appeal by Mr Borich. The first was the possibility of a conviction having an adverse effect on overseas travel and employment opportunities.  The Judge described the material put before him in that regard as “thin ... vague and speculative”.   I agree and, like Judge Ronayne, place little weight on that aspect.

[14]     The second aspect feeding into the consequences of the conviction was the

effect on the appellant’s reputation.  The Judge here took the view that the fact that

the appellant was a professional did not really place him in any different position

2	This analysis is consistent with both the clear wording of s 107 and, in general terms, the Court of Appeal’s approach.  See DC v R [2013] NZCA 255 at [31], and Z v R [2013] NZAR 142 at [27] (CA).

from anyone else.  He took the view that the effect on the appellant’s reputation was

really commonplace.

[15]    The third aspect was the direct or indirect consequences on the appellant’s professional position.   It had been suggested that his future progress as a physiotherapist might be adversely affected.

[16]     In that regard the Judge said:

[21]      The third direct or indirect consequence that I find that might result from a conviction in this case would be the intervention of your professional body.  But, having said that, it is entirely speculative as to what might occur if and when your professional body becomes involved.

[17]    The Judge then arrived at the third step of balancing proportionality of consequences of the gravity of the offending.   Under this limb the Judge returned again to the issue of professional discipline:

[23]      An important aspect of this matter is that where an independent body is charged with determining the suitability of individuals to either enter, or continue on in a profession, the Courts generally will be more ready to enter a conviction and that is because of the view that it is in the public interest for the body, such as your professional body, is best able to make a decision with the benefit of full disclosure of the facts relating to the offending and relating to the offender in this case himself, and it has been said in cases that it would be wrong for a screening body that has been authorised to make an investigation into a person’s character for the Court to assist in, as it were, concealing a person’s past.

[24]      In  this  case  of  course  it  is  a  little  different  to  situations  that sometimes come before the Court where professional bodies may become involved, where the professional body does not know about what has gone on.  In this case, as I understand the position, your professional body is already aware of what is going on and essentially awaiting the outcome of this hearing.

[18]     The Judge was correct when he observed the Board was already aware of what had occurred. As he rightly stated, this was not a situation where a professional body was unaware of low grade offending and might never become involved.

[19]     The Judge’s conclusion was:

[25]      In my assessment, the direct and indirect consequences of conviction are not out of all proportion to the gravity of the offence.   I have had

particular regard to my assessment that the consequences for you are an amalgam   of   the   reputational,   and   the   professional   affects,   and   the involvement already and the ongoing involvement of your professional body, which as I said, is already aware of the situation at least to some extent and, in my view, is well placed to assess all matters and so in light of that I refuse a discharge without conviction.

Discussion

[20]     The central balancing exercise when a discharge without conviction under s 106 is sought is neatly encapsulated in s 107 which 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.

[21]     As a matter of simple interpretation, a s 106 discharge is precluded if a Court is not satisfied that the direct and indirect consequences of the conviction are “out of all proportion” to the gravity of the offending.

[22]     Mr  Borich,  in  his  highly  competent  submissions,  contended  that  Judge Ronayne had over-emphasised the gravity of the offending and had under- emphasised  the  direct  and  indirect  consequences  which  would  flow  from  a conviction.    This  offending,  submitted  counsel,  was  low  in  gravity  and  not
“moderately serious” or “in the moderate range” as the Judge had articulated.3

[23]     Counsel further submitted that more emphasis should have been given to the reputational damage which might flow from knowledge of the conviction in the provincial city where the appellant practises.4   However, there was no evidence that the appellant’s previous appearances on the charge, in an out-of-town court, and his ultimate conviction had attracted any adverse publicity or damage to his reputation whatsoever.

[24]    Mr Borich accepted, as he had to, that the Board had already invoked investigative and possible disciplinary proceedings.  It was thus properly seised of

3	Supra [13].
4	A number of supporting letters and testimonials were produced from health professionals and the
appellant’s group practice. Professionally the appellant is obviously highly regarded.

the matter.  However, submitted counsel, a discharge without conviction might lead

the Board to conclude the appellant’s conduct was relatively trivial.

[25]     Reference  was  made  by  both  counsel  to  R  v  Foox,5   which  involved prosecutions under the Arms Act for illegal possession of air guns capable of both semi-automatic and fully automatic fire. The Court of Appeal said at [39]:

We would prefer not to express an opinion on the effect of the convictions on Mr Foox’s applications to be admitted as a barrister and solicitor and to obtain citizenship in this country.  This is a question for the appropriate authorities and it may well be that they, or either of them, will consider that this offending, or circumstances associated with the offending, bear close inspection.  In our view, it was appropriate to decline to discharge Mr Foox without  conviction  irrespective  of  the  possible  outcome  of  these applications.

The lower Court’s refusal to discharge without conviction was upheld.

[26]     On the issues of reputational damage and difficulties with overseas travel, Mr Borich made two  submissions.   First he submitted that the Judge had wrongly focused on a professional receiving special treatment rather than assessing the real potential for reputational damage in a small community where word travels fast. Secondly, he submitted that the Judge had wrongly discounted the problems with overseas travel and that the test was not whether consequences (in a s 107 sense) would inevitably occur but whether there was a real and appreciable risk of such an
occurrence.6

[27]   Mr Borich also submitted that, although accepting the physical and psychological damage which the assault caused the victim, there was no clear evidence whether such damage had been caused by the first (excusable) punch or the second punch.  This issue was not submitted to the Judge and would, in my view, be a fruitless inquiry and cannot, with respect, be a significant factor in the s 107 balancing exercise.

[28]     Although I consider there is a flaw in the Judge’s assessment of the gravity of

the offending, I do not see that flaw as being fatal to his final conclusion.  Had the

5	R v Foox [2000] 1 NZLR 641.
6	Counsel cited Potter J’s judgment, T v Police [2012] NZHC 1426.

Judge considered the assault (which carries a 12 month maximum) as being moderately serious then he would undoubtedly have imposed a fine.   Instead he convicted and discharged without penalty.  This was undoubtedly a very favourable outcome for the appellant because, as was clear from the victim impact statements, there was a solid basis to impose a reparation sentence. This was not done.

[29]     I see this as an unfortunate incident in the life of the appellant.  He comes from a good background and, as a relatively young man, has a number of laudable achievements behind him.  He clearly is highly regarded as a physiotherapist, is in demand, and has a good practice.   The second punch inflicted on the victim undoubtedly flowed, almost spontaneously, from anger which stemmed from an accident and the victim’s bite.   It is highly unlikely that the appellant will offend again.  He has conscientiously taken steps to ensure that violence and alcohol abuse are not components of his character.

[30]     These are all matters which will properly be assessed by the Committee.  It is not for me to predict the outcome or to make the type of assessment that the Committee needs to make.  But it would be surprising if, in the circumstances, the appellant’s career as a physiotherapist was placed in jeopardy.

[31]     All that said, I see the gravity of the offending as being low in the genus of assaults.  I assess, on the available evidence, very slight reputational damage.  There is an evidential void so far as overseas travel and employment are concerned.   I accept as I must that a discharge without conviction is unlikely to make any significant difference to the way in which the Board will assess the complaint it has received when it considers the many positive aspects of the appellant’s professionalism.   I therefore fall short of a conclusion that the direct and indirect consequences of the conviction would be out of all proportion to the gravity of the offending.

[32]     Although  I  have  considerable  sympathy  for  the  appellant’s  position  and accept unreservedly that he has faced up to the consequences of it (including taking steps to ensure he is not in need of professional assistance), that sympathy cannot translate, in the circumstances of this case, to a s 106 discharge.

Result

[33]	It follows, for the reasons I have given, that the appeal must be dismissed.

.......................................…
Priestley J