HANLEY v NZ POLICE [2019] NZHC 1544

HANLEY v NZ POLICE [2019] NZHC 1544 [2 July 2019]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI 2019-441-20[2019] NZHC 1544BETWEEN BESSIE MIHIROA HANLEYAppellantAND NEW ZEALAND POLICERespondentHearing: 2 July 2019Counsel: R B Philip for AppellantA Bryant for RespondentJudgment: 2 July 2019JUDGMENT OF SIMON FRANCE J[1] Ms Hanley was convicted after trial of the sole charge she faced, namelyindecent assault.1 The sentence imposed was one of 12 months' supervision, togetherwith reparation of $1,500.2 Ms Hanley appeals the decision of the District Court notto discharge her without conviction,3 and, in the alternative, the length of the term ofsupervision.[2] The indecent assault charge embraced a course of conduct carried out byMs Hanley, at this stage very drunk, on a work colleague. The venue was a local bar.Having similarly but less seriously molested another colleague, Ms Hanleyapproached the victim:1 New Zealand Police v Hanley [2019] NZDC 5396; and Crimes Act 1961, s 135; maximum penaltyof seven years' imprisonment.2 New Zealand Police v Hanley [2019] NZDC 9342.3 New Zealand Police v Hanley [2019] NZDC 8992.(a) she made a vulgar comment about "fingering" the victim;(b) she lunged at her vagina with a move described as between a grab anda punch;(c) told not to, Ms Hanley repeated the gesture. On both occasions shecontacted the victim on her genital area, albeit over her clothing; andfinally(d) she wrapped her arms around the victim, kissed her on the cheek andmuttered about conduct she was going to do, thereby achieving a levelof vulgarity that exceeded her initial comments. The District Courtdescribed the comments as consisting of "obscene and vulgar sexualthings you would like to do to her".4[3] Ms Hanley defended the matter, disputing there was any contact, indecency orindecent intent, and claiming it all to be a misinterpretation. Her intention was merelyto be friendly to a colleague she thought was down in mood. The Judge accepted thecomplainant's evidence, supported as it was by contemporaneous events andcomments, and held himself to be satisfied "without hesitation" the prosecutionallegations were proved.5[4] Ms Hanley appeals the conviction under s 232 of the Criminal Procedure Act2011. She submits she ought to have been discharged without conviction. The powerof a court to order a discharge without conviction is set out in s 106 of the SentencingAct 2002. Section 107 is the threshold which must be met before discretion can beexercised under s 106. Section 107 states:The court must not discharge an offender without conviction unless the courtis satisfied that the direct and indirect consequences of a conviction would beout of all proportion to the gravity of the offence.[5] A determination under s 107 has been held to be a three-stage process:64 Police v Hanley, above n 3, at [8].5 Police v Hanley, above n 1, at [16].6 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]–[17], R v Blythe [2011] NZCA 190,[2011] 2 NZLR 620 at [7]-[14]; and DC (CA47/13) v R [2013] NZCA 255 at [31].(a) consider the seriousness or gravity of the offending;(b) consider the direct and indirect consequences of a conviction on theoffender; and(c) determine whether the consequences would be out of all proportion tothe gravity of the offending.[6] The Judge assessed the gravity of the offending in the mid-range. This is thefirst point of challenge, it being submitted it is low-range. Matters relied on in relationto the incident are the short duration of an assault over clothing, and that it was notpremeditated or predatory.[7] For the purposes of an application such as this, the assessment of the gravityof the offending also includes weighing up all aggravating and mitigating factors. Inthis regard, it is pointed out Ms Hanley was until this incident in steady employmentas a youth justice social worker and had been for 11 years. She is a mother of twowith no previous convictions and Ms Hanley is assessed as recognising her conductwas unacceptable, and as being remorseful. She has indicated a wish to apologise tothe victim and tendered a letter to the Court.[8] In terms of the gravity of the offending, I begin with an assessment of theoffence itself. I reject labels such as "inappropriate" as masking the true nature of theoffending – this was an aggressive sexual assault, the motivations made clear byMs Hanley's comments while making contact with the victim. That Ms Hanley wasgrossly intoxicated does not alter the nature of what she did. It is moderately seriousoffending.[9] Turning to mitigating factors, Ms Hanley at aged 36 can fairly call upon aproductive life to date in which she has never offended, is raising a family and hasbeen in steady employment in an important area. She has been seeing a psychologistfor counselling, having referred herself. That said, I am less accepting of the presenceof other factors such as remorse and insight. The objective reality is that Ms Hanleydefended the charge, denied the conduct and in effect made suggestions that the victimand the woman who was the subject of earlier misconduct had colluded.[10] In affidavits provided to the Court after trial, Ms Hanley annexedcorrespondence with her employer. Included in that correspondence was a record ofa meeting with the employer at which Ms Hanley maintained a position that certainlycannot be said to display insight. I acknowledge she has subsequently written a letterto the victim apologising and expressing remorse, but it is a fair statement to say thebulk of the letter is about her and the impact the offending has had on Ms Hanley.[11] I am not persuaded the District Court was wrong to assess the overall offendingas in the mid-range and regard it as not in any way an over assessment. Mr Philipaccepted correctly that if this gravity assessment could not be shifted, this aspect ofthe appeal could not succeed. This is not to downplay the significant consequencesfor Ms Hanley and her family that have flowed, and will flow, from the conviction. Itis a real shame that her actions have led to this.[12] Ms Hanley works in the youth justice area and a conviction for indecent assaultwill be an initial barrier it will be difficult to surmount. However, for the reasonsgiven, indecent assault is not an incorrect label for the conduct; it is what happenedand what Ms Hanley did, and persisted with after the first unwelcome lunge. Theconsequences are inevitable and a shame for the family but are not out of all proportiongiven the nature of the offending.[13] In terms of the sentence appeal the Judge initially had in mind imprisonmentreduced to home detention but was satisfied supervision was an available alternative.That is an understandable approach given the consequences for Ms Hanley alreadyrepresent a significant punishment. The focus of the appeal is on the length of thesentence. Looked at from a rehabilitative perspective,7 12 months' supervision seemsunnecessary given the likely courses Ms Hanley would undertake. She already hassignificant life skills and programmes are likely to be limited to assist with the properuse of alcohol. The respondent accepts there is merit in this part of the appeal, and thesentence will be reduced to six months.7 Sentencing Act 2006, s 46.Conclusion[14] The appeal against conviction is declined.[15] The appeal against sentence is allowed. The sentence of 12 months'supervision is quashed, and in its place, I impose a sentence of six months' supervision.[16] The order of reparation stands unchanged.__________________________Simon France J