RICHTER v NEW ZEALAND POLICE [2021] NZHC 1433

RICHTER v NEW ZEALAND POLICE [2021] NZHC 1433 [16 June 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2021-485-7[2021] NZHC 1433BETWEEN BENCE BALAZS RICHTERAppellantAND NEW ZEALAND POLICERespondentHearing: 15 June 2021Appearances: L C Ord for Appellant R E Harcourt for RespondentJudgment: 16 June 2021REASONS JUDGMENT OF ISAC JIntroduction[1] Mr Richter was found guilty of breaching a protection order in the District Court.1 That finding was upheld on appeal.2 He now appeals the decision of the District Court declining to grant a discharge without conviction.3[2] There are 3 principal grounds of appeal:(a) The District Court Judge did not take into account all mitigating factors relating to Mr Richter in assessing the gravity of the offending, including matters of good character that were raised in his affidavit in the District Court, and other matters not raised in the District Court but outlined in his affidavit sworn for this appeal;1 Police v Richter [2020] NZDC 14117.2 Richter v Police [2021] NZHC 1165.3 Police v Richter [2020] NZDC 26329. Mr Richter was sentenced to come up if called upon.(b) The consequences of a conviction to Mr Richter were not fully advanced in the District Court and, accordingly, the Judge did not have all matters put before him, but the new evidence in Mr Richter's affidavit sworn in this appeal shows that it will be extremely difficult for him to obtain employment in a senior IT role if convicted; and(c) On a correct assessment on the basis of full information, the consequences of a conviction are out of all proportion to the gravity of the offending and the test in s 107 is met, and Mr Richter should be discharged without conviction.[3] After hearing from counsel I allowed the appeal with reasons to follow. I now set out my reasons.Background[4] Mr Richter and the victim separated in March 2018.4 Mr Richter found it difficult to accept the end of the relationship and was persistent in his contract with the victim. As a result, a protection order was issued and served on Mr Richter in February 2019, a month prior to the offending.[5] On 14 March 2019 Mr Richter saw the victim going into Freyberg Pool. A week later, Mr Richter entered the Pool, went to the mezzanine floor and stood for a short time looking down at the victim while she was in a kayaking class.[6] As was observed in the conviction appeal:5I agree with the Judge that Mr Richter's entry into the Pool complex and watching the pool, with the complainant in it, for at least 30 seconds from the mezzanine area was conduct amounting to a breach of the protection order. As the Judge noted, it was deliberate conduct that would make his presence known to the complainant as a form of psychological control. And Mr Richter conceded the existence of the protection order and knowledge of its terms. It followed that the prosecution had established beyond reasonable doubt the two elements of the offence. It was unnecessary for the prosecution to establish, as the appellant submitted, that Mr Richter deliberately entered the4 For a more detailed account of events, see Richter v Police, above n 2.5 Richter v Police, above n 2, at [42].Pool knowing the complainant would be there or was likely to be there, or that he intended his conduct to amount to psychological abuse.The District Court decision[7] After outlining the offending and procedural history of the case,6 the Judge turned to consider Mr Richter's application for a discharge without conviction. He noted the victim impact statement, where the victim recorded that she has been incredibly upset by the appellant's behaviour.7[8] The Judge identified the statutory test to be applied,8 before assessing the gravity of the offence.9 Although he considered the breach of a protection order to be a serious offence given the orders are made to protect vulnerable people, he said:10Looked at in isolation, and really there is no evidence of anything more than an isolated incident, this is at the lesser end. In one sense there is no violence or invasion of a home or persistence in it, it is one event as far as proof is concerned. But it was stalking type behaviour designed to let the person protected by the order know that you know where they are and that you were there looking at them. In my mind it is made worse by the fact that you gave a false explanation and that concerns me as to whether or not you are a man to push the boundaries. But, as I say, there are obviously worse cases of breach of protection orders, multiple breaches of orders much worse than this that we are talking about.[9] The Judge observed "on the plus side" there had been no proven reoccurrence of the behaviour since March 2019 and that Mr Richter has no previous convictions at all.11[10] In terms of the direct and indirect consequences of a conviction, the Judge noted they were "somewhat general", and that he did not think there was anything more than a speculative basis for thinking that a conviction would make a difference to Mr Richter's future employment prospects.12 He continued:136 Police v Richter, above n 3, at [1]–[5].7 At [6].8 At [8], noting the gravity of the offence is wider in that it also includes factors relating to a defendant personally, good or bad.9 At [9].10 At [9].11 At [10].12 At [11].13 At [11].It [the conviction] may have to be disclosed. I doubt very much that it will make a difference to actually getting any particular work opportunity and nor is there any evidence of that. With travel that is the same. I do not think that there is any travel that you are going to be prevented from doing because you have one conviction for breach of a protection order.[11] The Judge was not satisfied that the consequences of a conviction were out of all proportion to the gravity of the offending.14[12] The Judge concluded:15On the other hand. I have outlined the facts. I have outlined that this is one charge and one conviction. There are no pending charges. There have been no other proven charges. Two years has gone past. You have done a 16 session Living Without Violence course. I do not think that anything more is necessary than a conviction and to come up for sentence if called upon. That means if there is any recurrence of offending of this sort then you can be re-sentenced for this as well as, obviously, for any further offending. So that is it.Appeal[13] An appeal against a discharge without conviction is an appeal against conviction and sentence.16 Section 232(2) of the Criminal Procedure Act 2011 provides that the appeal must be allowed if there has been miscarriage of justice resulting from the refusal to grant a discharge without conviction, or as the Court inJackson put it:17... the principled basis for determining an appeal against a discharge without conviction is to establish that a miscarriage of justice has occurred by virtue of a material error by the sentencing judge in entering a conviction. That is because a trial includes a proceeding in which the appellant has pleaded guilty. Alternatively, it can be said that a miscarriage of justice has occurred "for any reason" if the Judge has erred in applying the principles for discharging an offender without conviction found in s 107 of the Sentencing Act.[14] The threshold test in s 107 is not a matter of discretion, but:18a 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.14 At [12].15 At [13].16 Jackson v R [2016] NZCA 627 at [12].17 At [12].18 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].[15] The issue is therefore whether the Judge's decision declining to grant a discharge without conviction to Mr Richter amounted to a miscarriage of justice or whether the Judge otherwise erred in applying the principles for discharging an offender without conviction.19Additional evidence[16] I will first address Mr Richter's application for leave to file additional evidence on his appeal. He seeks to admit a further affidavit from himself and a letter from an IT recruiter.[17] Mr Richter filed a brief two-page affidavit in the District Court in support of his discharge without conviction application. It focused nearly entirely on his good character and pointed to things such as saving a young girl from drowning in 2011 and calling the police for various incidents he had witnessed. It concluded by sayingGetting a conviction for this matter will not only affect my employment and travel, but would also be deeply upsetting to me personally[18] Mr Richter's updated affidavit explains that his lawyer at the time did not advise him of the extent of detail that would be required for a successful application for a discharge without conviction. The updated affidavit is more comprehensive. Amongst other things, Mr Richter elaborates on the difficulties that his conviction has already and will continue to create for his employment prospects. He works in IT, and has had a range of roles in that area for some time. He is now described as occupying "senior" roles.[19] The letter from the recruiter simply records that government organisations and private firms often require a Ministry of Justice clearance check to ensure candidates have a clear criminal record. It notes that most of the time a criminal conviction would limit or prevent a candidate from being successful in getting a permanent IT job. It concludes that it would be either very difficult or even impossible for Mr Richter to get a senior IT job again with a criminal conviction.19 A miscarriage of justice is defined under s 232(4) of the Act as any error, irregularity or occurrence in, or in relation to, or affecting the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity.[20] In Mark v R, the Court of Appeal held:20The principles for assessing the admissibility of fresh evidence for appeals against conviction are now well established. There is no reason why different principles should be engaged where an appellant wishes to adduce fresh evidence for an appeal against sentence. Thus, if the fresh evidence is not credible it should not be admitted. If it is credible, an assessment needs to be made as to whether or not it could have been presented to the sentencing Court with reasonable diligence. If the evidence is both credible and fresh it should be admitted unless the appellate court is satisfied it would have had no effect on the sentence. If the evidence is credible but not fresh, the appellate court should assess its strength and its potential impact on the sentence. If the appellate court considers that the sentence could be manifestly excessive if the evidence is excluded, then it should be admitted notwithstanding that it is not fresh.(footnote omitted)[21] Although both the updated affidavit and the letter from the recruiter are not fresh evidence in that that it was open to Mr Richter to obtain this evidence before sentencing, I accept that the sentence could be manifestly excessive if the evidence is excluded. The evidence is also credible. Mr Richter was obviously unaware of the level of detail required in a discharge without conviction application.[22] In oral submissions I took Mr Neild to accept the evidence could be admitted on that basis.Discussion[23] Sections 106 and 107 of the Sentencing Act 2002 enable a court to discharge an offender without conviction, provided the court is satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. The test to be applied to applications on discharge without conviction has been clarified by the Court of Appeal in Taulapapa v R:21[22] It is settled law that a court considering a discharge should: examine the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender; identify the direct and indirect consequences of conviction; and consider whether those consequences are "out of all proportion" to the gravity of the offence. Only then does it move to considering the residual discretion under s 106. There must be a "real and appreciable" risk that any given consequence will happen:20 Mark v R [2019] NZCA 121 at [16].21 Taulapapa v R [2018] NZCA 414.this standard recognises that the court is assessing the likelihood of something that may happen in the future.[23] The offender should ordinarily put information before the court to provide a factual basis for a decision that the test has been satisfied. There is no legal onus on the offender to do so however, and the standard of proof in s 107 is simply that the judge be satisfied that the requirements of the section are met.(footnotes omitted)Gravity of the offending[24] All relevant aggravating and mitigating factors relating to the offending and the offender come into play when assessing the gravity of the offending under s 107 of the Sentencing Act.22 As noted in Adams on Criminal Law – Sentencing, there are two steps inherent in assessing the gravity of the offending — the actual offending; and then a much broader analysis of all relevant considerations with the result that positive mitigating factors will lower the overall gravity of the offending.23[25] The assessment relates to the gravity of the particular offence committed.24[26] As noted, when considering the gravity of the offending the Judge found that it was made worse by the fact that Mr Richter gave a false explanation in evidence for his presence at the swimming pool. The Judge observed that the false explanation gave rise to a concern that the appellant might be "a man to push the boundaries."25[27] This was an error of approach in my view. While it was clearly open to the Judge to reject the explanation given by Mr Richter in evidence, it was irrelevant to an assessment of the gravity of his offending.26 While not all errors in approach will result in a miscarriage, for the reasons outlined below, this one has.2722 DC(CA47/13) v R [2013] NZCA 255 at [35]; Z(CA447/12) v R [2012] NZCA 599 at [27] andA(CA747/10) v R [2011] NZCA 328 at [25].23 Simon France (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at [SA107.05], as cited in DV v R [2021] NZHC 1077 at [40].24 Prasad v R [2018] NZCA 537 at [11].25 Police v Richter, above n 3, at [9].26 This is all the more so given that Mr Richter carried the burden of establishing that his encounter with the victim was accidental on the balance of probabilities and, therefore, rejection of his account cannot necessarily be equated with a conclusion that he was lying.27 Section 232 of the Criminal Procedure Act makes clear that not every error, irregularity, or occurrence will cause a miscarriage; it has to have created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial or a trial that was a nullity.[28] The respondent characterises the offending as serious psychological abuse. It says the cases cited by the appellant — where discharges without conviction have been granted for breaches of protection orders — can be readily distinguished.28 The essential proposition is that none of those cases involve the kind of deliberate conduct amounting to psychological control demonstrated by Mr Richter.29 And here, it is said, both the District Court and this Court has found that Mr Richter deliberately went to the Pool because he hoped the victim would be there.[29] I do not agree with the respondent's submission that Mr Richter's purpose in going to the pool was to inflict serious psychological harm on the victim. While it was deliberate conduct, and it may have had those effects on the victim, it must be remembered that it is not necessary for the prosecution to prove the defendant intended to breach the order. Nor is it necessary to prove that the defendant intended to psychologically abuse the victim.[30] I am satisfied the offending falls towards the bottom end of the range in terms of its gravity. This was an isolated incident of short duration. The encounter occurred in a public place where Mr Richter was physically removed some distance from the victim, and where she was in the company of other people. He left the area after thirty seconds. As the Judge noted, there was no element of persistence, and there was none of the often common features of this kind of offence involving an overt threat or intimidation directed at a complainant.30[31] I also do not accept the respondent's submission that the cases cited by the appellant where a discharge was granted can be distinguished because they involved less serious offending. Although they occurred in different contexts, they all involved deliberate conduct which amounted to a breach of a protection order.28 W v Police [2019] NZHC 534; Steele v Police HC Rotorua, CRI 2007-463-151, 11 February 2009;O'Riley v Police HC Wellington, CRI 2011-485-98, 26 November 2011; Deeming v Police HC Whangarei, CRI 2008-488-61, 24 July 2009.29 For example, the respondent submits: in W the defendant was anxious to contact her daughter; Mr Steele had been staying at the family home in an (eventually successful) attempt to reconcile with his wife in "confused circumstances" where he "allowed himself to be blinded" to this wife's withdrawal of consent; Mr O'Riley encountered his ex-partner by accident and kept a 10m distance; and Mr Deeming drove past the protected person's address without making any contact, and without any intent to intimidate her.30 By assessing the gravity of the offending as low, I do not of course mean to ignore or downplay the distress Mr Richter caused the victim, or the effects of the offending on her.[32] For example, in W v R, the appellant sent a number of unsolicited text messages to the complainant and, after first receiving a warning from the police about breaching the protection order, sent a further 38 text messages — some of which were mildly abusive — and made two phone calls.31 In Steele v Police the appellant returned to the house where his wife lived despite clear indications from her that her consent to his presence in the house had been withdrawn.32 And in Deeming v Police,33 the victim had returned home to her address to find the appellant in his car reversing out of the drive. She gave evidence that as their cars passed each other the appellant looked her in the eye "as if to put her on notice that he now knew where she lived."34[33] I consider the facts of some of these cases, particularly Deeming, reveal offending more serious than the present one.35[34] I also consider there are personal mitigating factors — that is, mitigating features of the offender — that were not given sufficient weight by the Judge. For one, Mr Richter had no previous criminal convictions of any kind. It appears this offending was out of character. And there were of course other positive illustrations of good character set out in Mr Richter's original affidavit.36[35] In addition to the required attendance at counselling as part of the protection order, Mr Richter voluntarily attended extensive counselling with other professionals. This indicates insight into the need to address the behaviours that led to the making of the protection order and a desire to address them. In his updated affidavit, which was not before the District Court, Mr Richter says: I thought at the time that I was trying to help [the victim] but I understand now that I was too persistent in wanting to rekindle the relationship and I should not have done this. I now understand how to avoid getting into this type of situation in the future and to have better boundaries when I feel like I want to help someone.31 W v Police, above n 28.32 Steele v Police, above n 28.33 Deeming v Police, above n 28, at [4]–[5].34 At [4].35 Deeming v Police, above n 28.36 See [17].[36] Overall, I consider the Judge should have given greater weight to the personal mitigating factors that existed when assessing the gravity of the offending.Consequences of a conviction[37] Given the matters addressed in Mr Richter's affidavit on appeal, I am satisfied that the consequences of his conviction were not sufficiently set out in the material before the District Court. This in turn affected the Judge's assessment of the second stage of the s 106 assessment. Having considered the updated evidence, I consider a conviction would be out of all proportion to the gravity of the offence.[38] It is first necessary to identify the consequences of a conviction.[39] In the District Court Mr Richter simply asserted he would have difficulty finding employment. It is perhaps unsurprising then that the Judge considered Mr Richter's claims were speculative.37 Now however he has a letter from an IT recruiter confirming the difficulty he will face in obtaining employment, and has provided more detailed evidence about his experience of applying for employment while awaiting trial. I am prepared to accept that what Mr Richter says is correct; that is, obtaining employment in the IT industry will be very difficult if not impossible — or that it is a "real and appreciable risk" that he may not find employment — with a conviction of this nature.[40] It is commonplace for employers to require criminal record checks before they will employ someone. Those without a criminal conviction will most likely be preferred over someone that does have a conviction. Some might say Mr Richter simply has to live with that consequence. But the question I have to ask is whether those consequences would be out of all proportion to the gravity of the offence. Given my finding that this offending falls toward the lower end of the range, and the evidence now before me in terms of the consequences of a conviction on Mr Richter's career and employment prospects, I consider the consequences are out of all proportion.37 Police v Richter, above n 3, at [11].[41] Moreover, Mr Richter has actively been looking for employment. He had to withdraw from one job for which he was shortlisted as a result of the then pending charge. Another potential employer has advised him that he is unlikely to be employable by them with a conviction of the nature in issue.[42] Finally, I do not accept the respondent's submission that:Mr Richter is in a very different position from the typical discharge without conviction case where a young defendant is about to embark on a career and is facing an assault conviction.[43] A criminal conviction is just as damaging to someone of Mr Richter's age. He has decades of work before him. While there are common features of cases where a discharge is classically awarded, the categories are certainly not fixed, and each applicant is entitled to be assessed on their own merits. Here Mr Richter has had a successful career in his chosen field. I have little trouble accepting that a conviction will be a permanent blight on his prospects, and may well render him unemployable in any real sense within his chosen field.Result[44] I allow the appeal and quash Mr Richter's conviction. I grant his application for a discharge without conviction under s 106 of the Sentencing Act.Isac JSolicitors:Crown Solicitor, Wellington