BB v NEW ZEALAND POLICE [2022] NZHC 3460

BB v NEW ZEALAND POLICE [2022] NZHC 3460 [16 December 2022]NOTE: PURSUANT TO S 25 OF THE MENTAL HEALTH (COMPULSORYASSESSMENT AND TREATMENT) ACT 1992, ANY REPORT OF THISPROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THEFAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEEhttps://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-000308[2022] NZHC 3460BETWEEN BBAppellantAND NEW ZEALAND POLICERespondentHearing: 13 December 2022Appearances: J L Holden and J T Tai for AppellantP R McNabb for RespondentJudgment: 16 December 2022Reissued: 23 February 2023JUDGMENT OF ANDREW JThis judgment was delivered by Justice Andrewon 16 December 2022 at 11.00 am and re-issued on 23 February 2023 at 4.00 pmpursuant to r 11.5 of the High Court Rules 2016Registrar / Deputy RegistrarDate.Introduction[1] Ms BB pleaded guilty to charges of possession of an offensive weapon in apublic place,1 wilful damage2 and being found in an enclosed yard without reasonableexcuse.3 In the District Court, Judge A M Manuel declined her application fordischarge without conviction and imposed a sentence of one year supervision inrespect of all three charges.4[2] BB now appeals against the Judge's refusal to discharge her withoutconviction. She contends that Judge Manuel overstated the gravity of the offendingand failed to properly assess her mental health at the time of the offending.[3] In opposing the appeal, the Police say there was no error in the Judge'sapproach.The offending[4] The victim of BB's offending was another woman who was not previouslyknown to her. On the afternoon of 21 March 2021, BB was parked outside the victim'saddress. It was clear that she was in an agitated state, pacing up and down thedriveway and smoking. BB pressed the intercom of the address and the victim openedthe gate to find BB in an angry state, demanding to know the victim's name. BB wasasked to leave the address but instead she followed the victim through the gate andbegan verbally abusing her, as well as flicking a cigarette butt at her.[5] The victim ran inside her house. BB then returned to her car to retrieve a 28-centimetre hammer from her vehicle. She used this to hit the intercom about 10 times,causing it to fall off and shatter. BB then left the victim's address.[6] In her victim impact statement, the victim says that she was scared and thoughtthat BB was going to assault her.1 Crimes Act 1961, s 202A(4)(a). Maximum penalty three years' imprisonment.2 Summary Offences Act 1981, s 11(1)(a). Maximum penalty three months' imprisonment or a finenot exceeding $2,000.3 Summary Offences Act 1981, s 29(1)(b). Maximum penalty three months' imprisonment or a finenot exceeding $2,000.4 Police v [BB] [2022] NZDC 15779.[7] The victim's address, where the offending took place, was BB's previousfamily home and where she grew up. It is also relevant to note that BB is currentlysubject to a community treatment order under s 29 of the Mental Health (CompulsoryAssessment and Treatment) Act 1992. She was diagnosed with schizophrenia in 2005and is currently receiving treatment with antipsychotic medication. BB has recognisedthat at the time of the offending she was experiencing a relapse of her mental healthissues as a result of stress.Legal principles – discharge without conviction[8] If a person pleads guilty to an offence, the court may, instead of imposing asentence, direct that the offender be discharged without conviction.5 The Court mustnot discharge an offender without conviction unless it is satisfied that the direct andindirect consequences of a conviction would be out of all proportion to the gravity ofthe offence.6[9] In Z (CA447/12) v R, the Court of Appeal set out a three-stage test to be appliedby the Court when considering applications for a discharge without conviction.7Firstly, when considering the gravity of the offence, the Court should consider allaggravating and mitigating factors relating to the offence and the offender. The Courtshould then consider the direct and indirect consequences of conviction and considerwhether those consequences are out of all proportion to the gravity of the offence.Finally, if the Court determines that they are out of all proportion, it must still considerwhether it should exercise its residual discretion to grant a discharge, noting that it willbe rare for the Court to refuse a discharge in such circumstances.District Court decision[10] Judge Manuel began the assessment of the gravity of BB's offending with thefeatures of the offending itself. She recorded the submission of the Police that theoffending was serious. There was unlawful entry into a dwelling place, actual orthreatened violence and verbal abuse of the victim at her own property where she could5 Sentencing Act 2002, s 106.6 Section 107.7 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27].and should have expected to be safe. Furthermore, BB used a hammer to break thevictim's intercom.[11] Her Honour then considered a large range of mitigating factors relevant to BBand her offending. This included a lack of previous convictions, an early guilty plea,genuine remorse and a willingness to attend restorative justice. The Judge alsoconsidered in detail BB's mental health and, in particular, an expert medical report byDr Chua, a forensic psychiatrist, dated 24 February 2022. The report outlined BB'sschizophrenia and recognised that "when [BB is] unwell or subject to external stresses,trouble can ensue".8 The Judge recognised that the date of the offending coincidedwith BB's late father's birthday and she was not taking her psychotropic mediation atthat time. Taking all of these mitigating factors into account, the overall gravity ofBB's offending was assessed as moderate.9[12] The Judge then turned to the consequences of conviction, in particular BB'sattempts to have her medical license restored. While BB graduated with a medicaldegree from Otago University, she has not practiced as a doctor since 2012 or 2013,and her license has been suspended on and off for a number of years. Her Honourstated:10The reality is [BB was] suspended by the Medical Council from practice dueto mental health issues. Although it is possible that a conviction may prejudice[BB's] attempts, all convictions are likely to have an impact on futureemployment prospects regardless of the type of sector.[13] As such, the impact on BB if convictions were to be entered against her wereassessed as moderate by the Judge.11 Given that both the offending and theconsequences were assessed as moderate, her Honour found that there was nodisproportion between the two.12 Her Honour also stated that if she had been incorrectin this assessment, she would have been prepared to exercise her residual discretionon public interest grounds and decline to discharge without conviction. She noted thatmedical profession is one that depends on public trust and confidence. Her Honour8 Police v [BB], above n 4, at [11].9 At [12].10 At [14].11 At [15].12 At [17].accepted the submission of the Police that a person with a violent history must beassessed fully and properly by the Medical Council; it is very much in the publicinterest for the Council to have access to all relevant information issued by the Court.13Approach on appeal[14] An appeal against the refusal to grant a discharge without conviction is anappeal against both conviction and sentence.14 As an appeal against conviction theCourt must be satisfied a miscarriage of justice has occurred.15 In the context of adischarge without conviction this means a material error or that the Judge erred inapplying the principles for discharging an offender without conviction found in s 107of the Sentencing Act.16[15] The threshold test in s 107 is not a matter of discretion, but rather a matter offact requiring judicial assessment, which can be subject to appeal on normal appellateprinciples.17 The Court's discretion to discharge without conviction under s 106 arisesand exists only if the court is satisfied that the s 107 threshold has been met.18Gravity of the offending[16] Ms Holden, on behalf of BB, submitted that the Judge had incorrectly assessedthe gravity of the offending. The overall gravity of the offending should have beenassessed as low, and not moderate as the Judge found. She submitted that the Judgefailed properly to assess BB's mental health at the time of offending.[17] Ms Holden accepted that the offending on its own could appropriately becategorised as moderate. She acknowledged the distress to the victim and that theoffensive weapon charge carries a maximum penalty of three years imprisonment.However, she contended that given BB's mental health condition and the correlation13 At [18].14 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]–[9]. See also Doyle v R [2022] NZCA307 at [14].15 Criminal Procedure Act 2011, s 232(2) and (3).16 Jackson v R, above n 14, at [12].17 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].18 At [12].between that and her offending, the gravity of the overall offending should properlyhave been assessed as low.[18] In particular, Ms Holden submitted that one key factor that the Judge failed toconsider was that at the time of the offending BB was unwell and off her medication.She referred to Dr Chua's medical report which states that BB had presented with an"abnormal state of mind, intermittent in nature characterised by delusion, disorder ofmood, cognition, perception and volition". It was further submitted that Dr Chua wasof the opinion that there was a likely nexus between BB's mental illness and theoffending, and that this correlation is sufficient to significantly mitigate the overallgravity of the offending.[19] The starting point in assessing the gravity of BB's offending is looking at thefeatures of the offending itself.19 As the Court of Appeal held in J v R,20 an assessmentof gravity is informed by the culpable conduct, to be determined on an assessment ofthe facts, rather than the nature of the charge.[20] As noted by the Judge, the offending here included threatening violence,verbally abusing the victim on their own property where she was entitled to feel safeand property damage with a hammer. The hammer, being the offensive weapon, wasactually used to inflict damage and in a threatening manner. There was an unlawfulentry onto the property. The victim impact statement referred to the victim feelingunsafe and scared, and fearing that BB was going to assault her. It is concerning thatBB did not previously know the victim and the offending took place at the victim'sown home. BB had no legitimate reason to be there. These aggravating features donot appear to be in dispute.[21] I accept that the offending was not at the most serious end of the scale.However, the aggravating features identified by the District Court Judge are ofconcern, and I find that there was no error in Judge Manuel's characterisation of them.19 See Taylor v R [2018] NZHC 688 at [46]; Babich v R [2018] NZHC 2324 at [7].20 J v R [2021] NZCA 690 at [36].[22] It is clear that there are multiple mitigating factors arising from BB's personalcircumstances – and in particular, her mental illness. As discussed, BB has beendiagnosed with schizophrenia. She has had a number inpatient admissions to a localtreatment facility, Te Whetu Tawera, and a history of non-compliance with medicationand treatment. BB was admitted to Te Whetu Tawera following her arrest andremained there until June 2021. She is presently under a community treatment order.These are all factors that were considered by the Judge. So too was the early guiltyplea, an absence of previous convictions and an offer of restorative justice.[23] There is an obvious nexus between BB's mental condition and her offendinghere. That is a particularly relevant and important factor in the assessment ofmitigation.21 BB was experiencing a high level of stress due to various factors in herpersonal life at the time of her offending, as detailed in her affidavit dated 2 February2022, most notably the birthday of her late father. The offending occurred at her oldfamily home where she grew up, in circumstances where her father had not left a will.This caused BB financial issues and issues with her family relationships.[24] However, Ms Holden's submission that the Judge did not consider BB's mentalstate at the time of the offending is incorrect. On the contrary, the Judge explicitlyconsidered BB's mental health condition at the time of her offending, including thefact she was off her medication. It was stated:At the time [BB was] not doing well. The date coincided with [BB's] late father'sbirthday which was a particularly difficult time for [BB] and [she was] not taking herpsychotropic medication.[25] The Judge also referred specifically to Dr Chua's report. Although her Honourdid not use the exact phrase of a "nexus" between BB's mental health issues and heroffending, it is clear that in considering BB's culpability, the Judge considered theimpact of her mental health issues on her behaviour. In particular, by recognising thatwhen BB is "unwell or subject to external stresses, trouble can ensue", it is clear thatthe Judge recognised the correlation between the stress BB was facing at the time of21 See Hessels v R [2020] NZHC 3019 at [60].her offending and the relapse of her mental health issues. There is no doubt that theseissues were considered by the Judge as mitigating features of BB's offending.[26] Ms Holden also submitted that BB is currently subject to a communitytreatment order, now understood to be indefinite. She contended that this furtheroversight should assist in BB's rehabilitation and reduce the risk of her reoffending. Iaccept that there is some merit in that submission. However, I note that BB has beenunder the Mental Health (Compulsory Assessment and Treatment) Act 1992 for sometime and committed the present offending in these circumstances. Furthermore, shewas subject to a community treatment order at the time of the District Court decision,and this was clearly recognised by the Judge.22 I also note that BB, with a medicalbackground, was not taking her psychotropic medication at the time and Dr Chuarecords that she has a history of non-compliance with medication and "AWOLs" frommental health institutions.23 In the circumstances, the fact that BB is now under acommunity treatment order, even if it is indefinite, does not significantly mitigate thegravity of BB's offending.[27] I have had regard to the various authorities referred to by Ms Holden,24 inparticular J v R,25 which was submitted as being most on par with the presentoffending. In that case the Court of Appeal found that the end sentence of 12 months'supervision was implicit of offending "well into the low range". However, that findingdoes not apply in the same way to the present facts.[28] In J v R, the charge at issue was one of demanding with menace. That carriesa maximum penalty of seven years imprisonment. As noted above, an assessment ofgravity is informed by the culpable conduct, rather than the nature of the charge.26 InJ v R, the defendant had possession of an axe but it was not brandished or used againsta person or property; instead it was placed on the counter.27 It was recorded that theshop assistant, who was the victim of the offending, had no long-term adverse effects22 Police v [BB], above n 4, at [10].23 Judge Manuel noted at [11], in reference to the report of Dr Chua, that BB has limited insight intoher mental illness and does not accept the diagnosis of schizophrenia.24 Hessels v R, above n 21; W v Police [2019] NZHC 534.25 J v R, above n Error! Bookmark not defined..26 Taylor v R, above n 19, at [46]; J v R, above n 20, at [36].27 J v R, above n 20, at [37].and was relaxed about the defendant receiving a discharge without conviction. Incomparison, BB's offending involved the use of a hammer to violently damageproperty, as well as verbal abuse, and the offending occurred at the victim's homewhere she was supposed to feel safe. I note also the Court of Appeal's finding that thedefendant was scrupulously compliant with her medication and maintained contactwith local mental health services.28 That is not the case here.[29] While the Court of Appeal did recognise that the defendant's mental health wasa significant mitigating factor, it was the combination of five features that resulted inthe conclusion that the gravity of the offending was low.29 The culmination of factorswas described as "powerful mitigation".30[30] I find that the same conclusion cannot be reached in the circumstances of thiscase. I find, after considering all relevant factors, including both aggravating andmitigating features of the offending and offender, that the overall gravity of theoffending is appropriately considered as being moderate. I reject Ms Holden'ssubmission that it should be assessed as low. The Judge therefore did not err inreaching the conclusion that she did.Consequences of conviction[31] The second stage of the test requires the Court to assess the direct and indirectconsequences of a conviction.31 Here, the particular consequences relied upon are thata conviction would impact BB's ability to have her medical license restored and/oraffect her alternative employment prospects.[32] BB does not contest Judge Manuel's assessment that the consequences ofconviction are moderate in this case. I reach the same conclusion.[33] As the Judge recognised, convictions are not an automatic bar to BB havingher license reinstated. However, a conviction will instigate an investigation by a28 At [39].29 At [41].30 At [41].31 Z CA447/12) v R, above n 7, at [27].professional conduct committee (PCC) or require BB to undergo a health evaluationpathway.32[34] It must also be recognised that BB was suspended from practice by the MedicalCouncil due to her mental health issues. Therefore, while having convictions willlikely prejudice her attempts to be reinstated to some degree, they are not the onlybarrier for BB. I also understand that the Medical Council is aware of thecircumstances of the offending in this case.[35] It is well-established that the Court is required to exercise caution inintervening in decisions that ought to be left to the appropriate statutory bodies. TheCourt should be hesitant to usurp the role of the employer or regulatory body indeciding the significance of a conviction.33 It should be left to the Medical Council todetermine BB's ability to reinstate her registration, having regard to all relevantinformation.[36] Furthermore, the employer's right to know about a conviction must be weighedagainst the consequences of a conviction on a defendant, particularly where, as thereis in this case, there is an independent statutory or other registration agency chargedwith assessing a person's character or suitability for a particular career.34 This isrelevant also to Ms Holden's submission that a conviction of this nature may impactBB's ability to seek other employment in the future if she cannot practice in medicine.The consequences on BB of prospective employers being informed of her criminalbackground does not outweigh their interest in being properly informed.[37] The consequences of conviction are moderate in nature.Proportionality[38] I have concluded that both the gravity of the offending and the consequencesof the convictions are to be assessed as moderate. In these circumstances, I find that32 See Health Practitioners Competence Assurance Act 2003, s 67A33 Stewart v Police [2015] NZHC 165 at [30]; Maraj v Police [2016] NZCA 279 at [36].34 R v Foox [2000] 1 NZLR 641 (CA).the essential element of "out of all proportion" in s 106 of the Sentencing Act 2002 isnot made out.[39] I find that the District Court Judge was correct to decline to grant BB adischarge without conviction and to conclude that the consequences of the convictionswould not be out of all proportion to the gravity of the offending. There was no errorin her approach.[40] I also agree with Judge Manuel's conclusion that, notwithstanding theproportionality assessment, the Court retains a residual discretion to decline to grant adischarge without conviction. The public interest in the Medical Council beinginformed of a person's criminal history, due to the importance of trust and confidencein the medical profession, was a relevant factor in the exercise of that discretion.Result[41] The appeal is dismissed.__________________________Andrew J