WILSON v NEW ZEALAND POLICE [2019] NZHC 1252

WILSON v NEW ZEALAND POLICE [2019] NZHC 1252 [5 June 2019]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2018-441-20[2019] NZHC 1252BETWEEN BRENT DUNCAN WILSONAppellantAND NEW ZEALAND POLICERespondentHearing: 14 May 2019Appearances: M J Phelps for AppellantF Cleary for RespondentJudgment: 5 June 2019JUDGMENT OF GRICE JIntroduction[1] On 21 May 2018 Mr Wilson appeared before the Napier District Court on twocharges of assault with intent to injure.1 Mr Wilson had pleaded not guilty to thecharges. Later, although it is unclear when, the charges were amended to the lessercharge of assaulting a child under 14 years of age.2 The Judge found the charges wereproved.3 On 22 June 2018, the Judge refused Mr Wilson's application for a dischargewithout conviction and instead convicted and discharged him.4[2] Mr Wilson appeals that decision on the basis:(a) The Judge erred in finding the charges were proved; and/or1 Crimes Act 1961, s 189(2); maximum penalty of five years' imprisonment.2 Section 194(1)(a); maximum penalty of two years' imprisonment.3 Police v Wilson DC Hastings CRI-2017-020-003273, 21 May 2018 [Proof Decision].4 Police v Wilson [2018] NZDC 12739 [Discharge Decision].(b) The Judge erred in declining to discharge Mr Wilson withoutconviction.[3] I will address each ground in turn.BackgroundFactual background[4] On the morning of 22 October 2017 Mr Wilson was at the breakfast table withhis then partner and her child. They were having breakfast together. The complainantchild left the table to put away a book. He said he was also upset. The complainantwent to his room. His mother reported that he was being rude to Mr Wilson. Thecomplainant was told to come back to the table by his mother, but he ignored thatrequest. Mr Wilson asked the child to come back from his room. The complainantignored that request too. Mr Wilson entered the complainant's bedroom and asked thecomplainant to come back to the table, but he was ignored.[5] Mr Wilson then grabbed the complainant's arm to "escort" him to the kitchentable. The complainant was upset and called Mr Wilson a "fucking whore". It wassuggested Mr Wilson leave the house and he did. Following this incident, the mothergrabbed the child by the wrists to make him go to church.[6] Following this incident the complainant complained of a sore arm. Afterchurch that day he was taken to the hospital for attention. There were initially fearsthere was a spiral fracture, but this was not borne out. On examination there was nobruising or swelling.[7] The second charge arose two years earlier. Sometime between 1 October and30 November 2015, in the early hours of the morning (around 1 am), the complainantbanged on Mr Wilson and his then partner's door. The child had been in the habit ofdoing his. The complainant entered their bedroom and was rude to them. Thecomplainant was then escorted back into his bedroom. He started to scream loudly inthe hallway. Mr Wilson put the complainant on the bed and put his hand over hismouth to stop him screaming. Mr Wilson put his hand over the child's mouth just asthe child finished screaming, so he did not have much breath. The complainant saidthat because Mr Wilson had big hands they also covered the nose. Mr Wilson said thathis hands did not cover his nose and he could hear the complainant continuing to tryto scream. Mr Wilson kept his hand over the complainant's mouth for around fiveseconds and removed it once the child had stopped screaming.District Court decision as to proof[8] In his decision, the Judge noted at the outset that the charges had been amendedto the lesser charge of assaulting a child. Assault, he noted, was the intentionalapplication of force by one person to the body of another, and no great force wasnecessary, just that it be deliberate and unjustified.[9] The Judge then outlined the "parental control" justification to assault. Thisdefence provides as follows:559 Parental control(1) Every parent of a child and every person in the place of a parent of thechild is justified in using force if the force used is reasonable in thecircumstances and is for the purpose of—(a) preventing or minimising harm to the child or another person;or(b) preventing the child from engaging or continuing to engagein conduct that amounts to a criminal offence; or(c) preventing the child from engaging or continuing to engagein offensive or disruptive behaviour; or(d) performing the normal daily tasks that are incidental to goodcare and parenting.(2) Nothing in subsection (1) or in any rule of common law justifies theuse of force for the purpose of correction.(3) Subsection (2) prevails over subsection (1).(4) To avoid doubt, it is affirmed that the Police have the discretion not toprosecute complaints against a parent of a child or person in the placeof a parent of a child in relation to an offence involving the use offorce against a child, where the offence is considered to be soinconsequential that there is no public interest in proceeding with aprosecution.5 Crimes Act, s 59 (emphasis added).[10] The Judge noted that this provision provides "a matter of justification or excusein circumstances where a measure of force which would otherwise constitute anassault, greater or lesser, involves a child under the care of an adult."6 The Judgeexpressly noted that once the evidential onus is met by the defence under thisprovision, the onus moves to the prosecution to disprove or displace this provisionbeyond reasonable doubt.[11] Turning to the two instances of assault identified here, the Judge says that thefacts were not heavily disputed, apart from "some picking around the edges".7[12] Having outlined the facts of the two incidents, the Judge turned to considerwhether justification had an evidential foundation in the present case. He noted:8(a) First of all, the purposes of the use of force have been statutorilyenumerated:(i) "To prevent or minimise harm to the child or another person,"that has no application here.(ii) "To prevent the child from engaging or continuing to engagein conduct that amounts to a criminal offence," that certainlyhas no object here.(iii) "To prevent the child from engaging or continuing to engagein offensive or disruptive behaviour," there is no suggestionthat the child's behaviour was offensive, except toold-fashioned notions of child conduct. There is an issuewhether it was disruptive; in fact, that word, whether bydesign or chance, entered into Mr Wilson's own evidence.(iv) Finally, "force of a reasonable kind is necessary to performthe normal tasks incidental to good care and parenting," thatreally adds nothing.(b) Section 59 then contains a qualification that the use of force for anyof those purposes does not justify the purpose of correction of a child.[13] As to the breakfast table incident, the Judge noted that he believed the forcewas effectively correction at best and none of the relevant provisions of s 59 assistedthe defence to justify the assault.6 Proof Decision, above n 3, at [3].7 At [5].8 At [11].[14] The Judge recognised that Mr Wilson should be allowed the subjective benefitof an assessment of the disruption involved in the screaming incident. Nevertheless,the Judge said that as a person training in childcare Mr Wilson should have had aheightened awareness of the dangers of impeding an airway to silence a child and ofthe law. The Judge said, a reasonable person in Mr Wilson's position would haveconsidered other obvious reasonable reactions like shutting the door and "letting himscream it out for himself."9 The Judge found the defendant did not react reasonably.[15] On this basis the Judge found the charges were proved, noting that he wantedMr Wilson's evidence typed up and that counsel should carefully consider thatevidence before sentencing or making another application.Discharge decision[16] The Judge noted the charges and the facts giving rise to those charges beforereferring to Mr Wilson's evidence that he was using a childcare technique he had learntbeing: "ask, then tell, then make the child conform with instructions".10 The Judgenoted no justification was made out and that Mr Wilson had little insight into his error.[17] Turning to the implications a conviction might have for Mr Wilson's career asa teacher, the Judge said that as the charges were proved they were going to beavailable evidence. Therefore, the professional disciplinary or licencing body ofteachers would need to consider the question further.[18] The Judge did not find that the consequences of conviction would be all out ofproportion to the gravity of offending. He said this was not to say the situation withthe child was not difficult, just that Mr Wilson should have dealt with it differently.[19] The Judge entered the conviction and discharged Mr Wilson. Namesuppression was refused.9 At [17(b)].10 Discharge Decision, above n 4, at [5].Appeal against convictionLaw[20] Section 232(2)(c) of the Criminal Procedure Act 2011 provides that the HighCourt must allow an appeal if the Court is satisfied that a "miscarriage of justice hasoccurred for any reason".[21] A "miscarriage of justice" is defined in s 232(4) as "any error, irregularity, oroccurrence in or in relation to or affecting the trial that [either] has created a real riskthat the outcome of the trial was affected; or has resulted in an unfair trial or a trialthat was a nullity". As is inherent in the legislative provisions and pointed out by theSupreme Court (in Matenga), not every error or irregularity causes a miscarriage ofjustice. Importantly, "a miscarriage is more than an inconsequential or immaterialmistake or irregularity".11[22] A "real risk" that the outcome was affected exists when "there is a reasonablepossibility that a not guilty (or more favourable) verdict might have been delivered ifnothing had gone wrong".12 This standard means that "an appellant does not have toestablish a miscarriage in the sense that the verdict is actually unsafe" but that there isa real possibility the verdict would be unsafe.13[23] As an appellate Court, there are limitations involved in not seeing or hearingdirectly from the witnesses.14 However, the Judge must provide a reasoned resolutionto significant evidential disputes.15 This Court may come to different views on theevidence before it, but it is for the appellant to show that an error has been made.16Discussion[24] The submissions of Mr Phelps, on behalf of Mr Wilson, were careful anddetailed.11 Matenga v R [2009] NZSC 18 at [30].12 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110].13 At [110].14 Sullivan v Police HC Auckland CRI-2008-404-152, 2 October 2008 at [30]–[31].15 Sena v Police [2019] NZSC 55 at [36].16 At [38].[25] Turning first to the breakfast table incident, Mr Phelps submits the Judge failedto appropriately consider Mr Wilson's subjective belief that the behaviour was meantto stop disruptive behaviour rather than be corrective. He also submits that as onlygrabbing and dragging was involved in this incident, the force would have beenreasonable.[26] These matters are insufficient to give rise to a real risk there was a miscarriageof justice. The framing of the submissions advances these arguments as errors of law,but they are challenging the Judge's factual assessment. It is a factual assessment withwhich I agree. Counsel argue that in assessing Mr Wilson's subjective appreciation ofhis punishment the Judge should have put more weight on the context and that theforce used should not have been said to be correctional. The submission is that whilethe Judge was aware of the context, he gave it less regard than the cross examination.I do not accept counsel's submission. The argument that Mr Wilson acted to preventongoing disruption, in the form of disobedience, fails. The act of "escorting" the childback to the table was clearly corrective. There was no necessity for immediate control,other than correcting the disobedience. A refusal to return to the table is not disruptivein this context.[27] Whether or not the behaviour was reasonable does not arise on this analysis.The act was correctional and therefore no justification can exist in relation to thischarge. This ground of appeal must fail.[28] Mr Wilson's ground of appeal concerning the charge arising from his actionson the night that he went into the complainant in response to the child's screamingpresents a similar difficulty. Mr Wilson says on this charge the Judge erred inconcluding the force used by Mr Wilson was not reasonable in the circumstances tostop the disruptive behaviour. Mr Phelps says that on this occasion the complainantonly desisted in screaming when his mouth was covered. The Judge considered thatthere were other options open to Mr Wilson. Other reasonable techniques wereavailable to stop the behaviour. These included letting the complainant scream it out.Placing a hand over the child's mouth was not a reasonable course of action in thecircumstances. I agree with the Judge and therefore this ground also fails.[29] The appeal against conviction fails. I agree with the Judge's findings. Heappropriately found both charges were proved. These matters do not give rise to a realrisk of a miscarriage of justice.Discharge without convictionLaw[30] An appeal against the refusal of the District Court to grant a discharge withoutconviction is a composite appeal against conviction and sentence.17[31] Section 106 of the Sentencing Act 2002 provides that if a person who ischarged with an offence is found or pleads guilty, the court "may discharge theoffender without conviction, unless by any enactment applicable to the offence thecourt is required to impose a minimum sentence".[32] The application of s 106 is guided by s 107 which provides as follows:107 Guidance for discharge without convictionThe 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.[33] The Court of Appeal in R v Hughes said s 107 "provides a gateway throughwhich any discharge without conviction must pass".18 The Court noted that such anappeal is not an appeal against the discretion of the Court:19[11] The decision as to whether the test under s 107 has been met is not amatter of discretion. It is a matter of fact requiring judicial assessment, whichcan be subject to appeal on normal appellate principles ... The discretionarypower of the court to discharge without conviction under s 106 arises andexists only if the court is satisfied that the s 107 threshold has been met.[34] The approach to be adopted by an appeal court in relation to s 107 has beensummarised as:2017 Jackson v R [2016] NZCA 627 at [6]–[16].18 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].19 At [11].20 Denden v Police [2014] NZHC 1814 (citations omitted).[28] An appeal against a refusal to grant a discharge without conviction isby way of rehearing. Normal appeal principles apply as set out in Austin,Nichols & Co Inc v Stichting Lodestar. In Heke v R, the Court of Appealconfirmed the application of an Austin, Nichols approach in criminal appealswhere the decision under appeal involves a matter of fact requiring judicialassessment. Later in Paia v R, the Court of Appeal confirmed the approachtaken in Heke. Thus, when it comes to a decision under s 107, the appellatecourt must come to its own view of the merits; the weight the appellate courtgives to the original decision is a matter of judgment; and that deference tothe assessment of the original decision-maker is not necessary, even where theassessment requires a value judgment. If the appellate court considers that theoriginal decision is wrong, it must act on that opinion.[35] More recently the Court of Appeal commented on the s 107 test and said:21[11] It is settled that a court considering a discharge under s 106 of theSentencing Act 2002 should follow a three-step process addressing theguidance given in s 107. These steps are:(a) identification of the gravity of the particular offence, takinginto account all aggravating and mitigating factors of theoffending and the offender;(b) identification of the direct and indirect consequences ofconviction; and(c) a determination of whether those consequences are "out of allproportion" to the gravity of the offence.Only if that threshold is met can the court move to consider the residualdiscretion under s 106. There must be a "real and appreciable" risk that anygiven consequence will happen. This standard recognises that the court isassessing the likelihood of something that may happen in the future.[36] In terms of the gravity of the offence, the Court of Appeal has summarised thecorrect approach to take as follows:22[W]hen considering the gravity of the offence, the court should consider allthe aggravating and mitigating factors relating to the offending and theoffender; the court should then identify the direct and indirect consequencesof conviction for the offender and consider whether those consequences areout of all proportion to the gravity of the offence; if the court determines thatthey are out of all proportion, it must still consider whether it should exerciseits residual discretion to grant a discharge (although, as this Court said inBlythe, it will be a rare case where a court will refuse to grant a discharge insuch circumstances).21 Prasad v R [2018] NZCA 537 (citations omitted).22 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27] (citations omitted).[37] When considering the direct and indirect consequences of conviction on adefendant, the Court of Appeal stated that:23The Judge does not have to be satisfied that the direct and indirectconsequences will inevitably or probably occur; it is sufficient if he or she issatisfied there is a real and appreciable risk of such consequences.[38] The Court of Appeal recently confirmed in R v Smyth that: 24[12] It is not enough that the consequences of a conviction outweigh thegravity of the offending. Significantly more is required. The consequencesmust be out of all proportion to the gravity of the offending before the courthas jurisdiction to grant a discharge without conviction.[39] Once the Court is satisfied the disproportionality test has been met pursuant tos 107, it may then determine whether to order the discharge.25Analysis[40] Mr Phelps submits the Judge erred as he failed to outline the gravity of theoffending leaving this Court to guess at it. He notes the Judge did not have theadvantage of the material that is now before this Court and therefore had little go onwhen considering the application for a discharge without conviction. Mr Phelps askedthis Court to approach the matter afresh. I agree that an error was made in the processthe Judge adopted to assess the applications. Therefore, the appropriate course is forme to consider the matter afresh and I now follow the appropriate structure forconsidering an application under s 107.Identifying gravity of offending[41] Under the first step contemplated by s 107 the Court must assess theseriousness of the offence of its type and the aggravating and mitigating factors relatedto the offence and the offender.[42] I do not agree with Mr Wilson's characterisation of the behaviour as being atthe bottom of the range in terms of seriousness. In particular, one of the charges23 DC (CA47/2013) v R [2013] NZCA 255.24 R v Smyth [2017] NZCA 530.25 Z (CA447/2012) v R, above n 22, at [21]; R v Hughes, above n 18, at [8]–[12].involved impeding the child's airflow, even if it was for a short time. Mr Phelps, forMr Wilson, submitted that a hand over the mouth is different to a hand around thethroat. That may be the case, but blocking a child's breath for even a short time wouldbe very distressing for a child who was already upset.[43] Mr Phelps pointed to the fact that the Judge had convicted Mr Wilson but didnot impose any penalty. He submitted that this indicated that the Judge considered theoffending was at the lower end. However, a conviction of itself is a relativelysignificant penalty, even without anything further. I do not consider this adds muchweight to the appeal.[44] Turning to the aggravating factors of the offending, in my view putting a handover a child's mouth to impede air flow does move the offending above the lowestcategory of its type. Dragging a child back to the table firmly by the arm might beless serious, but still involved some force and resultant pain. I also note that theoffending occurred on two separate occasions albeit separated by two years. Further,the same child was involved in both incidents. In addition, Mr Wilson was in aposition of trust, he was a parental figure, there was an age disparity between MrWilson and the child, and the complainant was vulnerable.[45] In terms of mitigating factors relating to Mr Wilson, Mr Phelps argued that theseriousness of the original charges he originally faced (assault with intent to injure)had precluded the police from exercising their discretion under s 59(4) of the CrimesAct to not prosecute due to the offending being "so inconsequential that there is nopublic interest in proceeding with the prosecution". He argues if Mr Wilson had beeninitially charged with assaulting a child under 12 years of age this discretion wouldhave been available.[46] Mr Phelps cites the Court of Appeal decision in DC (CA47/2013) v R in puttingthat point forward as a factor.26 I note that the circumstances involved in that casewere quite different to those in the present. It involved very serious sexual andviolence allegations which were eventually admitted to be either made up or could be26 DC (CA47/2013) v R [2013] NZCA 255.innocently explained. The convictions on which discharge was sought involvedsmacking for the purposes of correction.[47] That is not the case here, where there was little dispute about the nature andfacts of the offending. It is true that assaulting with intent to injure does have a highermaximum penalty (five years maximum term of imprisonment as compared to two)but that alone is insufficient to render the possibility of the exercise of the discretionby the police under s 59(4) as anything more than speculative.[48] I view Mr Wilson's failure to plead guilty to the offending as neitheraggravating or mitigating as the initial charges were substituted during the hearing forlesser ones.[49] As a further mitigating factor, Mr Phelps says that had Mr Wilson not beencharged with the more serious offence of assault with intent to injure he may have haddiversion available to him. The cases cited by Mr Phelps involved minor offending inwhich the complainant's views were the only reason diversion was not considered.27Again whether or not diversion might have been given is a matter of speculation. I donot consider this a mitigating factor for that reason.[50] I do consider Mr Wilson's lack of any prior convictions and his co-operationwith the police by undertaking a DVD interview are mitigating factors. However, Ido not consider remorse was a mitigating factor as the finding of the Judge was:28[6] Mr Wilson's defence, at the end of the day, amounted to no defence atall but rather a justification for his behaviour based on the mantra ["ask, tell,make"] to which I have referred. It is no justification. And given that it wasmaintained to the point that it was, Mr Wilson has to be seen as without insightinto, or appreciation of, the error into which he has fallen.[51] I agree with the Judge.[52] In conclusion, I view Mr Wilson's offending as at the low to moderate end ofthe range for this kind of offending.27 Masson v Police HC Christchurch A61/01, 26 July 2001; Cook v Police HC Auckland A01/03, 28February 2003.28 Discharge Decision, above n 4.[53] I now turn to identify the direct and indirect consequences of the convictionfor Mr Wilson.Direct and indirect consequences of conviction[54] The main issue which favours the defendant being discharged withoutconviction is the potential loss of his proposed teaching career. He was on the path tobeing registered as a teacher. He also has available to him an accounting career if hechooses to pursue a degree in that field.[55] Mr Wilson was employed at an early childhood centre. He was immediatelysuspended without pay when charged with this offending. Mr Phelps points out, andit is not contested by the Crown, that Mr Wilson will not have the opportunity to applyto the Teachers' Council for registration as these convictions fall within the definitionof specified offences. These require the teaching council to cancel the registration andpracticing certificate of the person convicted.29 Mr Phelps further submitted that thereis scope to apply for an exemption to the Chief Executive of the Ministry of SocialDevelopment, however, he submitted that presented a high threshold. The reality hesaid is that any person who has been convicted of an assault on a child is unlikely tobe granted an exemption.30[56] The District Court Judge had concluded that any questions arising from aconviction were best left to the Teaching Council. Mr Phelps submitted that theinference here was that the Judge did not want to keep the fact of the conviction fromthat body. However, Mr Phelps said the Teaching Council was already seized of thismatter and the entry of convictions for assault on a child would not allow the Councilany discretion.[57] In addition, Mr Phelps submitted that there is a real and appreciable risk thatthese convictions (particularly as they relate to violence) will have an impact on MrWilson's attractiveness to future potential employers in general, even assuming he29 Children's Act 2014, s 28.30 Section 35 provides an exemption may be granted only if the Chief Executive is satisfied that theperson would not pose an undue risk to the safety of children if employed or engaged as a careworker.could not return to teaching. Mr Phelps referred to Police v Taavali where Katz Jidentified that various Judges of the High Court had previously held the impact ofconvictions on job applications is a relevant factor, even though such consequencesmay be "general consequences" likely to flow from a conviction rather than beingrelated to an appellant's particular circumstances.31 Her Honour accepted theexistence of a conviction is likely to render the task of job hunting significantly moredifficult for an appellant than if there was no conviction.[58] I accept that it is a natural consequence of a conviction that the personconvicted will be less attractive to potential or future employers. On its own it is nota weighty consideration. As Gendall J recently said in Herkt v NZ Police:32[24] The overall consequences of a conviction in this case, as I see it, reallycome down to a suggested difficulty the appellant may have in finding full-time employment in her preferred area. This, however, is merely the naturalresult of her offending.[59] I agree Mr Wilson is likely to face reasonably significant difficulties in workingin the field of teaching again but this is the natural result of his offending. It is alsoimportant to note that such a conviction is not a complete bar to occupationalregistration. While, no application has yet been made to the Chief Executive of theMinistry of Social Development, this remains a course of action open to Mr Wilson.[60] This reasoning also extends to Mr Wilson's concerns about being able to workin the field of accounting if he chooses to follow that career.[61] General concerns were also raised about the convictions impacting travel.Mr Wilson has travelled for study and recreation in the past. In my view, this is aminor factor in the circumstances and while it may add some weight it only very slight.[62] Having said all of this, I now turn to consider whether the consequences toMr Wilson are out of all proportion to the gravity of the offence.31 Police v Taavali [2012] NZHC 2323.32 Herkt v NZ Police [2019] NZHC 1014.[63] In this case as I have found the seriousness of the offending was low tomoderate. The impact on Ms Wilson's career and job opportunities are a naturalconsequence of his offending. I do not consider they are out of all proportion to theseriousness of the offences. Had only the breakfast table offence occurred, thisdecision might be different. However, two such offences involving the same child bya trusted adult who was in a position of trust brings me to the conclusion that theconsequences for Mr Wilson are not out of all proportion to the consequences in thecircumstances.[64] I am not satisfied that the direct and indirect consequences of a convictionwould be out of all proportion to the gravity of the offence.Conclusion[65] Accordingly, the appeal is dismissed._________________Grice JSolicitors:Crown Solicitor's Office, Napier