FULOP v NEW ZEALAND POLICE [2021] NZHC 707

FULOP v NEW ZEALAND POLICE [2021] NZHC 707 [31 March 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000512[2021] NZHC 707BETWEEN CSILLA NIKOLETT FULOPAppellantAND NEW ZEALAND POLICERespondentHearing: 29 March 2021Appearances: N Silich for the AppellantO Klinkum for the RespondentJudgment: 31 March 2021JUDGMENT OF HINTON JThis judgment was delivered by me on 31 March 2021 at 3:00 pmRegistrar/Deputy RegistrarSolicitors/Counsel:Westside Chambers, AucklandMeredith Connell, AucklandIntroduction[1] Csilla Fulop appeals convictions for one charge of assault on a person in afamily relationship1 and one charge of wilful damage.2 Ms Fulop sought a dischargewithout conviction pursuant to sections 106 and 107 of the Sentencing Act 2002 (theAct). Judge Pidwell declined the application and sentenced Ms Fulop to six months'supervision with a condition that she complete a parenting course.3[2] Ms Fulop appeals the refusal to grant a discharge without conviction on thegrounds that the Judge did not give sufficient credit for the rehabilitative steps takenby her when assessing the gravity of the offending and that the Judge erred when shedecided the consequences of conviction were speculative.[3] Ms Klinkum, counsel for the Crown, submits the appeal should be dismissedas there were no errors in the Judge's assessment of the gravity of the offending, norin weighing the consequences of conviction. Ms Klinkum submits the consequencesasserted by Ms Fulop are speculative and not out of all proportion to the gravity of theoffending.Facts[4] The offending occurred on 6 October 2019, shortly after Ms Fulop hadturned 26.[5] Ms Fulop and the complainant were in a defacto relationship and livingtogether with their four-month-old baby. They had a heated verbal argument whenMs Fulop discovered the complainant was having an affair. Ms Fulop began tophysically assault the complainant by punching and head-butting his head and kneeinghim in the groin. The complainant tried to lock himself in the bathroom to get awayfrom her. She got into the bathroom and continued to assault him in the same manner.He then attempted to leave the address in his car. Ms Fulop hit him in the head andgroin and jumped onto the back of the car so that he could not leave. The complainant1 Crimes Act 1961, s 194A; maximum penalty of two years imprisonment.2 Summary Offences Act 1981, s 11(1)(a); maximum penalty of three months imprisonment or finenot exceeding $2,000.3 Police v Fulop [2020] NZDC 23212.went back inside the house. Ms Fulop picked up the complainant's phone and brokeit in half. The complainant suffered a bleeding nose, bruising, and swelling across hisnose as a result of the assault.Law[6] Section 106 of the Act provides that a court may discharge an offender withoutconviction. Under s 107, the discretion is to be exercised only if "the court is satisfiedthat the direct and indirect consequences of a conviction would be out of all proportionto the gravity of the offending".[7] This requires the Court to engage in a three-step proportionality assessment asset out by the Court of Appeal in Z (CA447/2012) v R:4(a) the Judge must identify the gravity of the offending, including theaggravating and mitigating factors of the offending and the offender;and(b) the Judge must identify the direct and indirect consequences of aconviction for the offender; and(c) the Judge must consider whether those consequences are out of allproportion to the gravity of the offending.[8] An appeal against a refusal to grant a discharge without conviction is an appealagainst conviction and sentence.5 The appellant must establish either that amiscarriage of justice has occurred by virtue of a material error by the Judge enteringa conviction or that the Judge erred in applying the principles of s 107 of the Act.[9] The proportionality assessment is a matter of judicial evaluation rather than theexercise of a discretion. Therefore, the appeal proceeds by way of general appeal.64 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142, at [27]-[28].5 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144, at [12].6 H (CA680/11) v R [2012] NZCA 198, at [30].Sentencing in District Court[10] In the District Court the Judge found that the gravity of the offending was atthe mid to low end of the scale. In reaching this conclusion, the Judge disagreed withdefence counsel's suggestion that the offending was at the low end. She stated:7"Low-end offending in my view is a single act, which does not cause injury.The offending, to the contrary, was sustained, it took a period of time, it didnot stop at the first bout of anger. It continued within the home and outsideand it was serious. It was punches to head, it was more than one punch to head.It was kneeing and headbutting as well as punches, together with breaking aphone, which is often a way of exerting power and control over a person."[11] In her assessment of the gravity, the Judge took into account the fact thatMs Fulop had completed the Women's Stopping Violence programme and a parentingthough separation course to address the causes of her violent outburst.[12] Ms Fulop had sworn an affidavit saying that a conviction of this nature couldbe a bar to employment as a jewellery appraiser or at the least cost her an opportunitywhen up against another suitably qualified candidate. She said Police clearance isrequired for this type of work. She provided proof of her qualification from a jewelleryinstitute and referred to having worked for Stewart Dawson and for Dollar Dealers,but she did not provide any evidence from employers as to how the conviction wouldimpact her employment prospects. The Judge found that the risk was too speculativeto satisfy her it was real and appreciable. The Judge further held that even if it were areal risk, it would not be out of all proportion to the gravity of the offending.New affidavit by ex-employer[13] At the hearing of this appeal Mr Silich for the appellant sought leave to adducea further affidavit, this time by Ms Katrina Brown, the manager of Dollar Dealers inAvondale. Dollar Dealers employed Ms Fulop as a jewellery sales assistant for12 months. Ms Brown says jewellery work requires a certain amount of trust; thecharacter of an employee is an important consideration when employing someone inthis field; and that generally a person with a criminal conviction of any type is notconsidered a suitable candidate.7 Police v Fulop, above n 3, at [5].Discussion[14] I consider first the argument that the Judge erred by not giving sufficient creditfor the rehabilitative steps Ms Fulop had taken, when assessing the gravity of theoffending. Mr Silich cites Delaney v Police, submitting that "gravity of the offence"includes "guilty pleas, expressions of remorse and the Court's assessment of howlikely it is that the offender will re-offend, the victim's perspective, and anyconsequence already suffered by way of reparation, community work or publicity."8He submits that the significant steps, including attending programmes and workshopsand reconciling with the complainant, taken by Ms Fulop to ameliorate the harmcaused by her offending, should have placed the gravity of the offending into the lowerend of the scale.[15] Ms Klinkum says that the rehabilitative steps taken by Ms Fulop were takeninto account by the Judge in assessing the broader circumstances of the offending, butthat the Judge did not consider these steps reduced the offending to the lower end ofthe scale. Ms Klinkum submits that in isolation the offending was correctly viewed bythe Judge as being of moderate gravity, brought down after rehabilitative steps to lowto mid-range offending.[16] The broader circumstances, including the completion of Stopping Violenceprogrammes, the complainant's views, and the counselling Ms Fulop and thecomplainant have completed together, reduce the gravity of the offending. However,I agree with the Judge that given the sustained nature of the offending and the injuriessuffered by the complainant, the overall assessment is at the low to mid end of scale.The Judge did factor in the broader circumstances and did not err in her assessment ofthe gravity of the offending.[17] I turn to the second appeal point: that the Judge erred in deciding theemployment-related consequences of Ms Fulop's conviction were 'speculative'.Mr Silich relies on the affidavit evidence of both Ms Fulop and Ms Brown.8 Delaney v Police HC Wellington CRI-2005-485-22, 22 April 2005, at [29].[18] Ms Klinkum submits that an applicant for a discharge without conviction mustordinarily point to a circumstance tending to establish that the consequence willhappen9 and Ms Fulop's affidavit does not go that far. Ms Klinkum submits MsBrown's affidavit is not cogent and should not be allowed into evidence but that it alsodoes not go far enough. She submits further that while background checks and securitymay be important to prospective employers of Ms Fulop, she is not charged with adishonesty offence. Therefore the conviction will likely be of less relevance.[19] Ms Fulop does not have to prove the asserted consequences (i.e. loss of careeras a jewellery appraiser) will happen, but she must present evidence or supportingmaterial to establish there is a real and appreciable risk the conviction will impact heremployment in the way she argues.10[20] I would be prepared to err in favour of Ms Fulop and take into accountMs Brown's affidavit, but I would still not be satisfied that the conviction would ruleout Ms Fulop's employment as a jewellery appraiser. What might be the generalposition is not enough. Ms Brown does not say for example that as a result of thisconviction she would not re-employ Ms Fulop. Nor would I consider that likely to bethe case. The particular conviction has no connection to any dishonesty and is on theface of it a one-off offence of jealous rage by a no doubt exhausted mother of a new-born.[21] In any event I also agree with the Judge that, even if Ms Fulop could not nowobtain employment as a jewellery appraiser, I would not consider that to be aconsequence out of all proportion to the gravity of the offending. There would be noreason or insufficient reason to conclude that Ms Fulop could not obtain employmentin related or other fields given her age, qualification and work experience.9 R v Taulapapa [2018] NZCA 414, at [45].10 Adamson v Police [2015] NZHC 2031, at [28].Conclusion[22] While I have sympathy for Ms Fulop her case does not fall within the verylimited circumstances in which a discharge can be granted. For the reasons outlinedabove, the appeal is dismissed.Hinton J