C v NEW ZEALAND POLICE [2022] NZHC 878

C v NEW ZEALAND POLICE [2022] NZHC 878 [29 April 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2021-485-55[2022] NZHC 878BETWEEN CAppellantAND NEW ZEALAND POLICERespondentHearing: 6 April 2022Counsel: C J Tennet for AppellantH R Hancock for RespondentJudgment: 29 April 2022REASONS JUDGMENT OF ELLIS J[1] On 8 March 1996, when C was 21, she was convicted of being a party tounlawful sexual intercourse with a girl aged 12-16 years.1 She had pleaded guilty tothat charge. Her then-partner, H, had also pleaded guilty as a principal to the charge.The girl in question was a few months shy of her 16th birthday at the time of theoffending.[2] C was sentenced to a six-month suspended prison sentence and six months ofsupervision. She had never offended before. Since then, she has committed a verysmall number of minor offences.[3] Some 25 years later—on 20 December 2021—Gwyn J granted C an extensionof time to appeal her sentence.2 She determined the delay was, for various reasons,1 Crimes Act 1961, s 134(1) and s 66(1).2 C v New Zealand Police [2021] NZHC 3560. Strictly speaking—and as Gwyn J expresslyacknowledged—an appeal that is predicated on the contention that the appellant should have beenexplicable and that, on the face of it, there was merit in the argument that C shouldhave been discharged without conviction, which apparently had not been consideredat sentencing.[4] C's appeal was heard before me on 6 April 2022. In a results judgment issuedthe following day I allowed the appeal and granted C a discharge without conviction,with reasons to follow. These are those reasons.New "evidence" and background material[5] Police had no objection to the admission, on appeal, of further evidence fromC about relevant matters subsequent to her 1996 conviction. As will be seen, thosematters were addressed quite extensively by Gwyn J in the course of her judgment. Idiscuss them in more detail later in this judgment.[6] As far as the offending itself was concerned, Mr Tennet initially indicated thathe might seek to adduce further evidence about that, too.. But prior to the hearing hesensibly recognised that the logistical difficulties presented by that course (some25 years after the event) counted against it. He therefore agreed with Mr Hancock thatmatters would proceed largely based on the 1996 summary of facts which formed thebasis of C's guilty plea.[7] That position is, however, slightly complicated by the fact that the only accountnow existing of C's sentencing itself appears to be a brief newspaper article publishedat the time and helpfully provided to the Court at an earlier point by Mr Hancock.Gwyn J referred to it in her judgment and I propose to do so too. Needs must. Alsoavailable to the Court is the statement made by the complainant to Police in 1996,which I consider where relevant. I can see no prejudice to either party in doing so.discharged without conviction is an appeal against both conviction and sentence. Her grant ofleave to appeal "against sentence" needs, I think, to be understood in light of the other possibilitywhich she was addressing, which was that C should be granted leave to appeal her conviction andthat a retrial potentially be ordered.The summary of facts[8] The summary of facts records that at the relevant times C worked part-time ata store where her then-partner, H, worked as a manager. The victim (A) also workedfull time at the store. As noted earlier, A was 15 and C was 21. H was a little older.[9] The summary records that:On Saturday 10 February 1996, the victim was invited to a party with bothdefendants at a local hall.The victim, not accustomed to drinking, had several bottles of beer, andbecame quite intoxicated.After the party, at approximately 11.30 pm, the defendants took the victimback to their flat.[H] undressed the victim, and then undressed the defendant [C]. [H] undressedhimself and all three then got into bed.[H] then got the victim to commit indecencies upon [C], while he watched.[C] then instructed the victim to have intercourse with [H].[H] then applied KY jelly to his penis, and had sexual intercourse with thevictim, while [C] fondled the victim's breasts. [H] did not use a condom.Some time later, the victim went to the bathroom, and realised that the roomwas spinning, due to her level of intoxication.She returned to bed, and [H] again had intercourse with her.All three fell asleep, and were woken at approximately 5.30 am, by a friend ofthe victim's who was looking for her.Both defendants were spoken to by Police some days later. They admitted thefact as outlined.In explanation, they stated that the victim was a willing party throughout theentire night, and that nothing would have happened had she not wanted it to.Sentencing[10] As noted earlier, the only available account of C's sentencing is the brief reportpublished in the Evening Post on 19 April 1996. It reported:A young couple's sexual threesome has resulted in suspended prisonsentences.In the Wellington District Court yesterday, a lawyer for the man involved saidthe girl was a willing partner in the February 10 events which were an offenceonly because she was just short of 16 years old.Defence counsel Paul Surridge said she was no stranger to alcohol and hadalready lived in a lesbian relationship.[H], 23, and his fiancée [C], 21, were each sentenced to six months jailsuspended for six months, and six months supervision by a communitycorrections officer.Further offending could activate the jail sentence.[H] pleaded guilty to having sex with the girl and [C] pleaded guilty to aidingin the commission of the offence.The court heard previously that the three spent the hight together after a party.Police said the girl was quite intoxicated.Judge Arthur Middleton said he accepted it was not a case of [H] leading thegirl astray.[C]'s lawyer, Jackie Anderson said [C] had a tragic history. She had been inthe care of the State since the age of 18 months.Her three-year relationship with [H] was her first close bond.Miss Anderson said [C] claimed she was more responsible for what happenedthan [H].[11] There is nothing to suggest that the possibility of a discharge withoutconviction for C was raised at this time.Applicable law and procedure[12] C's conviction was entered before the enactment of the Criminal Procedure Act2011 (the CPA). In accordance with s 397(2) of that Act, Ms C's appeal must be heardand determined in accordance with the Summary Proceedings Act 1957 (the SPA), asif that Act was still in force.[13] Section 115 of the SPA provides that appeals against conviction (includingappeals against sentence) are general appeals. Section 119 provides that generalappeals are by way of rehearing and that the High Court has full discretionary powersto hear and receive further evidence, if that evidence could not in the circumstancesreasonably have been adduced at the hearing. And s 121 relevantly provides:121 High Court to hear and determine appeal(1) The High Court shall hear and determine every general appeal andmake such order in relation to it as the Court thinks fit, and, withoutlimiting the generality of the power conferred by this subsection, mayexercise any of the powers referred to in the succeeding provisions ofthis section.(2) In the case of an appeal against conviction, the High Court may—(a) Confirm the conviction; or(b) Set it aside; or(c) Amend it and, if the Court thinks fit, quash the sentenceimposed and either impose any sentence (whether more orless severe) that the convicting Court could have imposed onthe conviction as so amended, or deal with the offender in anyother way that the convicting Court could have dealt with himon the conviction as so amended..(3) In the case of an appeal against sentence, the High Court may—(a) Confirm the sentence; or(b) If the sentence (either in whole or in part) is one which theCourt imposing it had no jurisdiction to impose, or is onewhich is clearly excessive or inadequate or inappropriate, orif the High Court is satisfied that substantial facts relating tothe offence or to the offender's character or personal historywere not before the Court imposing sentence, or that thosefacts were not substantially as placed before or found by thatCourt, either—(i) Quash the sentence and either pass such othersentence warranted in law (whether more or lesssevere) in substitution therefor as the High Courtthinks ought to have been passed or deal with theoffender in any other way that the Court imposingsentence could have dealt with him on the conviction;or[14] There is no dispute that to "deal" with an offender "in any other way" caninclude discharging him or her without conviction. In 1996 that dispositional optionwas governed by s 19 of the Criminal Justice Act 1985. It provided:19 Discharge without conviction(1) Where a person who is charged with an offence is found guilty orpleads guilty, the court may discharge the offender without convictionunless by any enactment applicable to the offence a minimum penaltyis expressly provided for.(2) A discharge under this section shall be deemed to be an acquittal.[15] In Police v Roberts, the Court of Appeal explained that the centralconsideration under s 19 was whether the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offence:3What the Court must do is "to balance all the relevant public interestconsiderations as they apply in the particular case". The public interest mayrequire a conviction to be entered because of the nature of the offence and theparticular occupation or proposed occupation of the offender. On the otherhand, the offence may be so trivial that public interest does not call for aconviction to be recorded [In] the final analysis, after considering all therelevant circumstances, it is a proper exercise of the Court's discretion "if thedirect and indirect consequences of the conviction are, in the Court'sjudgment, out of all proportion to the gravity of the offence." That must bethe overriding consideration. The words, "out of all proportion" point to anextreme situation which speaks for itself.[16] As Gwyn J noted, Roberts made it clear that, when considering whether todischarge a defendant under s 19, a Court was required to assess:(a) the nature of the offence and the gravity with which it is viewed byParliament;(b) the seriousness of the particular offending;(c) the circumstances of the defendant in terms of the effect on "[their]career, [their] pocket, [their] reputation and any civil disabilitiesconsequential on conviction"; and(d) any other relevant circumstances.[17] Those are the matters I discuss, in turn, below.3 Police v Roberts [1991] 1 NZLR 205 at 210.The nature of the offence and the gravity with which Parliament viewed it[18] At the time of Ms C's offending, s 134 of the Crimes Act 1961 relevantlyprovided:134 Sexual intercourse or indecency with girl between 12 and 16(1) Every one is liable to imprisonment for a term not exceeding 7 yearswho has or attempts to have sexual intercourse with any girl of or overthe age of 12 years and under the age of 16 years, not being his wife.(3) It is a defence to a charge under this section if the person chargedproves that the girl consented and that he is younger than the girl:Provided that proof of the said facts shall not be a defence if it isproved that such consent was obtained by a false and fraudulentrepresentation as to the nature and quality of the act.(4) It is a defence to a charge under this section if the person chargedproves that the girl consented, that he was under the age of 21 yearsat the time of the commission of the act, and that he had reasonablecause to believe, and did believe, that the girl was of or over the ageof 16 years:Provided that proof of the said facts shall not be a defence if it isproved that the consent was obtained by a false and fraudulentrepresentation as to the nature and quality of the act.(5) Except as provided in this section, it is no defence to a charge underthis section that the girl consented, or that the person charged believedthat the girl was of or over the age of 16 years.(6) The girl shall not be charged as a party to an offence committed uponor with her against this section.(7) No one shall be prosecuted for any offence against this section, exceptunder paragraph (a) of subsection (2) thereof, unless the prosecutionis commenced within 12 months from the time when the offence wascommitted.[19] I begin by observing that, since that time:(a) the maximum penalty for an offence against s 134(1) has been raised to10 years' imprisonment; and(b) the statutory defences have become, in some respects, more liberal andin others, more restricted in that:(i) the s 134(3) defence has been removed; but(ii) the s 134(4) defence has been expanded so that it appliesregardless of the age of the defendant.[20] Neither of these changes in the law were brought to the attention of Gwyn J.They are, however, material for the reasons I now explain.[21] The 2005 increase in penalty is potentially relevant to the first limb of theRoberts inquiry because, in 1996, the maximum penalty for an offence against s 134was the same as the maximum penalty for indecent assault. It was only the former(s 134) penalty that was increased in 2005. So viewing the matter through a 1996 lens(as I must) it might reasonably be supposed that Parliament then had a slightlydifferent view as to the inherent seriousness of offending of this general kind.4 IfParliament viewed the seriousness of offending under s 134 as on a par with theseriousness of indecent assault, that makes the (quite numerous) cases wheredischarges without conviction have been given in indecent assault cases arguably morerelevant and useful, for comparative purposes, than they might seem at first blush.5[22] The other important and general point is that despite the relatively highmaximum penalty, s 134 is a blunt charging instrument; it potentially captures a widerange of behaviour, from the barely criminal to the much more serious. On the onehand it captures (as it did here):(a) an act of intercourse that, had it taken place only a few months later—once the complainant had turned 16—would not constitute an offenceunder s 134 at all; and(b) a case where the offender is not so much older than the complainantand may, him or herself, be still quite vulnerable.4 Although it may also be observed that then, as now, the maximum penalty for an offence againsts 134(1) was exactly half the maximum penalty for unlawful sexual connection.5 Dickins v R [2012] NZCA 265; DV v R [2021] NZHC 1077.[23] As well, the 1996 version of s 134 would see an offender aged 21 or overconvicted even if he or she believed on reasonable grounds (or after reasonableinquiry) that the complainant was 16. As the Court of Appeal noted in Kahia v R, theprovision of a defence of mistake is a matter of justice; its absence in such a caseoffends a fundamental principle of the common law.6[24] For these reasons, I would pitch the gravity with which Parliament viewedoffending under s 134 at a somewhat lower level than I think Gwyn J did. In myassessment it was regarded by Parliament—in 1996—as an offence of moderateseriousness.Seriousness of the particular offending[25] The later changes to the defence provisions are also potentially relevant here.As just noted, in 1996 the s 134(4) defence (consent and reasonable belief that thecomplainant was 16) would not have been available to Ms C because she was 21 yearsold at the time, rather than "under" that age.[26] As it happens, however, the material before the Court makes it clear that A'sconsent, and her closeness to the "cut-off" age of 16, were matters expressly raised asmitigating factors by defence counsel at sentencing. Before me, Mr Hancockexpressly advised that he did not seek to adduce any evidence to counter thesubmission that the summary of facts leaves open the possibility that A was, indeed, awilling participant.[27] While it is more difficult—without adducing fresh evidence—for C to say nowthat she was under a misapprehension about A's age, the unavailability to her in 1996of a defence of mistake goes quite some considerable way to explaining why it wasnot a focus at sentencing.7 But in any event there is at least arguably a basis in thecomplainant's own statement (made at the time) for suggesting that she may haveappeared, and acted, older than she was: although on the one hand she maintained that6 Kahia v R [2019] NZCA 612 at [26].7 It may also be observed that, until the enactment of the Sentencing Act 2002 (and s 24 of that Actin particular), there was no defined procedure for assessing disputed facts prior to sentencing. Theenactment of s 24 reflected the recommendations of the Law Commission in Proof of DisputedFacts on Sentence (NZLC R76, 2001).everyone at her place of employment (including C) knew that she was 15, she alsospoke about being involved at the time in a (sometimes sexual) relationship withanother woman.8 Presumably this is what the sentencing Judge meant when he(reportedly) said that he accepted it was not a case of [H] leading the complainantastray.[28] As counsel acknowledged, it is not possible to interrogate these factual mattersmuch further some 25 years after the event. But, in my view, they may well haveplayed a part in the sentencing Judge's view that both C's and H's offending was atthe lowest end of the s 134 scale. That this was his view is reflected in the (effectively)non-custodial sentence he imposed on them both.C's relevant circumstances (consequences of conviction)[29] I note at the outset that this is not the first case of a defendant seeking on appealto obtain a discharge without conviction well after the event due to more recentpersonal developments said to make the effect of the earlier convictiondisproportionately severe. Moreover, appeals of that kind have, on occasion,succeeded.9[30] In this case, the consequences now of C's historic conviction were canvassedthoroughly by Gwyn J. They plainly influenced her decision to grant leave to appealso long out of time.[31] First, Gwyn J noted that C's relationship with H broke down soon after theirconvictions. C was then in a relationship for 20 years and has two special needschildren from that relationship. Then:[6] From 2004 to 2016, Ms C was an early childhood teacher,employed by a national provider of in-home childcare and early childhoodeducation services. Ms C had told her employer about her criminal recordwhen she commenced employment with them, but after the VulnerableChildren Act 2014 came into effect her employers terminated her employment,in June 2016, on the basis that her previous conviction was for a "specified8 A point apparently noted by defence counsel at sentencing. Whether a complainant's appearancecan suffice for the purposes of establishing reasonable grounds for a mistake as to age wasdiscussed at some length in Kahia.9 McNeil v Police [2018] NZHC 1685; Kearse v Police [2020] NZHC 3255.offence" in Schedule 2 of the Act. The Act provides that a core workerconvicted of a specified offence cannot be employed or engaged unless thatperson applies for an exemption. Ms C's employer advised her that, while shewas entitled to go through the exemption process, they would not re-registerher given their internal policies.[7] Subsequently Ms C has applied for more than 40 jobs in other areasbut has been unsuccessful.[32] Later in her judgment, Gwyn J specifically noted that in C v R the Court ofAppeal did not consider the effect of s 28 of the Vulnerable Children Act to be apersuasive ground for the grant of a discharge without conviction.10 She said:[65] The Court discussed s 35 of that Act which provides a process to seekan exemption (which may be qualified or contain conditions) from the chiefexecutive of any key agency. C had applied for an exemption and the ChiefExecutive of Oranga Tamariki had made a preliminary decision to decline herapplication, but provided C with an opportunity to provide further informationtargeted on specific areas of concern. The Court of Appeal said that, in thecircumstances of that case, the ability to seek a statutory exemption provided"sufficient scope to look beyond the mere fact of a conviction and engage ina robust examination of C's offending and later rehabilitative efforts."[33] But, the Judge said:[66] The circumstances of that case were somewhat different. In Ms C'scase her former employer, a national provider of in-home childcare and earlychildhood education services, who was aware of Ms C's conviction from theoutset, on the enactment of the Vulnerable Children Act, advised her that"While you are entitled to go through this exemption process, we would notre-register you given our internal policies on the matter."[67] That in itself differentiates this case from C v R and [may] be apersuasive ground for a discharge without conviction. Added to that is Ms C'sinability to access emergency housing or live-in Women's Refuge services ata time of critical need. In my view, that combination of effects, all of whichwould have been largely unforeseen or foreseeable, means that there is clearpractical utility to the remedy sought and Ms C may ultimately be able to makeout the test for a discharge without conviction.[34] I agree with Gwyn J that the consequences for C of her conviction are severe.She is being deprived of existing and future gainful employment in circumstanceswhere she clearly poses no risk and where she has special needs children to support.In a time of great need it has prevented her from securing emergency housing for herand those children, despite (again) the absence of any relevant risk.10 The "C" in that case is, of course, not the "C" in this case.Are the consequences of conviction out of all proportion to the gravity of theoffence?[35] In light of the matters canvassed above I consider that the consequences of C'sconviction are out of all proportion to the gravity of the offence. My reading ofGwyn J's judgment is that she was also of that view. For the reasons I have explained,the case in favour of that conclusion is even stronger than it was before her.Discretion[36] As has often been noted, it will be a rare case where a Judge concludes that theconsequences of a conviction are out of all proportion to the gravity of the offence andthen exercises his or her discretion against granting a discharge. The present is noexception. The only conceivable concern—that, given the nature of C's occupation,it is important for her future employers to know about her conviction—is, in my view,groundless. The relevant events occurred over 25 years ago. C has had no furtherrelevant convictions. Her offending did not involve a young child. She poses norisk.11Result[37] The appeal is allowed. C's conviction is quashed. On the single charge underss 134 and 66 of the Crimes Act 1961 she is discharged without conviction._____________________Rebecca Ellis JSolicitors:Crown Solicitor, Wellington for Respondent11 Evidenced, as well, by the fact that her former employer (who was aware of C's conviction) wasprepared to employ her before the passage of the Vulnerable Children Act.