DUGGAN v NEW ZEALAND POLICE [2023] NZHC 1948

DUGGAN v NEW ZEALAND POLICE [2023] NZHC 1948 [25 July 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2023-485-030[2023] NZHC 1948DANIEL DUGGANvNEW ZEALAND POLICEHearing: 25 July 2023Counsel C Sheat for AppellantA Brosnan for RespondentJudgment: 25 July 2023JUDGMENT OF CHURCHMAN JIntroduction[1] On 24 April 2023, the appellant, Mr Daniel Duggan, was convicted anddischarged by Judge Mika at the Family Violence Court in the Hutt Valley DistrictCourt1 after pleading guilty to a charge of assault on a person in a family relationship.2In convicting and discharging the appellant, the Judge declined the appellant'sapplication for a discharge without conviction pursuant to s 106 of the Sentencing Act2002. The appellant now appeals the Judge's decision declining that application onthe grounds that the Judge erred in finding that the direct and indirect consequencesof conviction the appellant had raised were speculative.1 Police v Duggan [2023] NZDC 7734 [decision under appeal].2 Crimes Act 1961, s 194A – maximum penalty two years' imprisonment.Background to the offending[2] The facts are not in dispute and were set out by the Judge in his sentencingnotes as follows:[3] The relevant facts of the offending are that Mr Duggan and the victimin this matter at the date of the offence had been in a relationship for abouttwo years. The victim was eight months pregnant at the time. Mr Duggan andthe victim were at the home address [] at about 10 o'clock [in the morning].There was an argument. Mr Duggan was seated in the driver's seat of thevictim's car. He refused to get out of the car or return the key to the victimwhen he was requested. At this point, the victim has grabbed Mr Duggan'sXbox to exchange in return for her car key. Mr Duggan has come out of thevehicle and pushed the victim out of his way. It was hard enough for her topush against an outside wall.[4] Mr Duggan took his Xbox from the victim and started to throw itemsaround in their home. Mr Duggan slammed the ranchslider of the cabinagainst the victim's leg on multiple occasions as she tried to get in. The victimhas removed the car key from the ignition when Mr Duggan tried to get backinto the vehicle. Mr Duggan has wrestled the key from the victim, he hasattempted to drive away in the car and pushed the victim when she tried tostop him from driving off in her car. The police arrived a short time later. Thevictim received injuries including bruising to her forearm and to her right leg.Decision under appeal[3] In convicting and discharging the appellant, the Judge declined the appellant'sapplication to be discharged without conviction.[4] In terms of the gravity of the offending, the first stage of the assessment, theJudge assessed the overall gravity of the offending, taking into account the aggravatingand mitigating features of the offending, to be "low to moderate for this type ofoffending."3[5] Firstly, while the Judge noted the physical assault itself might be considered"at the lower end of the scale", the Judge considered aggravating features of theoffending put it into the "moderate category of seriousness for offending of this type".4In particular, the victim was "very vulnerable", being eight months' pregnant with theirfirst child, the appellant assaulted the victim on "a number of occasions", pushing thevictim on two occasions and then slamming the ranchslider against her leg multiple3 At [16].4 At [11].times, and the offending resulted not only in physical injuries to the victim, but alsohad an ongoing psychological impact on the victim, who spent the following twomonths after the assault worried that the baby would be stillborn.5 The Judge declinedto accept the submission of the police that a further aggravating factor was theminimising of the offending by the appellant.6[6] This was, however, tempered by a number of mitigating factors that reducedthe gravity of the offending. In particular, the Judge assessed that the appellant was aperson of good character, with no previous convictions, he was relatively young at thetime of the offending, being 22 years old, and he had entered a guilty plea to thecharge.7 He was also willing to attend a restorative justice conference and hadcompleted a programme called "Living Without Violence", in which he had been"fully engaged" and had "showed some insight" into his offending.8 Finally, the Judgereferred to the mental health issues raised on the appellant's behalf, including anxiety,depression, possible autism and neuro-diversity. The Judge acknowledged these butnoted they had been self-reported so did not carry as much weight as a formaldiagnosis.9 The combination of these facts led the Judge to conclude that the overallgravity of the offending was, as noted, "low to moderate for this type of offending."10[7] In terms of the direct and indirect consequences of a conviction, the secondstage of the assessment, the Judge accepted that the consequences of a conviction aremore serious for young people and noted counsel for the appellant's submission that aconviction would have an impact on the appellant's mental health.11 However, heconsidered that any consequences on the appellant's future employment prospectswere speculative.12[8] Overall, the Judge was not satisfied that the direct and indirect consequencesof a conviction would be out of all proportion to the gravity of the appellant's5 At [7]–[9].6 At [10].7 At [13].8 At [14].9 At [15].10 At [16].11 At [17].12 At [17]–[18].offending.13 He therefore declined the appellant's application for a discharge withoutconviction.14SubmissionsAppellant's submissions[9] The appellant submits the Judge erred in finding that the direct and indirectconsequences of conviction were speculative. The appellant says there is a real andappreciable risk that the consequences will occur and that even without specificevidence, the general consequences of convictions can be out of all proportion tooffending which is low to moderately serious.Respondent's submissions[10] The respondent submits that the appellant has failed to show that the Judgemade a material error in how he assessed the direct and indirect consequences ofconviction on the appellant's employment.Approach to appeal[11] An appeal against a refusal to grant a discharge without conviction is acomposite appeal against both conviction and sentence.15 The basis for determiningan appeal against a refusal to grant a discharge without conviction is whether amiscarriage of justice has occurred:16(a) by virtue of a material error by the sentencing judge in entering aconviction; or(b) as a result of an error by the judge in applying the principles ofdischarging an offender without conviction under s 107 of theSentencing Act.13 At [19].14 At [19].15 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 [7]–[8].16 At [12].[12] An appeal against a refusal to grant a discharge without conviction is not anappeal against the discretion of the Court but rather proceeds by way of rehearing.17Accordingly, the normal appeal principles apply as set out in Austin, Nichols & Co Incv Stichting Lodestar.18 The appellate court is not constrained to considering theCourt's discretion at first instance, but the appellant bears the onus of persuading theappellate court to reach a different conclusion, and in discharging that onus theappellant must identify the respect in which the decision under appeal is said to be inerror.19[13] The approach to be adopted by an appeal court in relation to s 107 has beensummarised in the following way:20 [W]hen it comes to a decision under s 107, the appellate court must cometo its own view of the merits; the weight the appellate court gives to theoriginal decision is a matter of judgment; and that deference to the assessmentof the original decision-maker is not necessary, even where the assessmentrequires a value judgment. If the appellate court considers that the originaldecision is wrong, it must act on that opinion.[14] If the appeal is allowed, the Court must set aside the conviction, and may makeany order it considers justice requires.21Relevant law[15] The discretion conferred by s 106 is available only if the Court is satisfiedunder s 107 that the direct and indirect consequences of a conviction would be out ofall proportion to the gravity of the offence.22 The Court of Appeal has described s 107as "a gateway through which any discharge without conviction must pass".23[16] An assessment under s 107 is a three-step process:2417 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11]; and Denden v Police [2014] NZHC1814 at [28].18 Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141; and seeHeke v R [2010] NZCA 476 at [17]–[19].19 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [29]–[31].20 Denden v Police, above n 17, at [28].21 Criminal Procedure Act 2011, s 233.22 Sentencing Act 2002, s 107.23 R v Hughes, above n 17, at [8].24 Prasad v R [2018] NZCA 537 at [11].(a) identification of the gravity of the particular offence, taking intoaccount all aggravating and mitigating factors of the offending and theoffender;25(b) identification of the direct and indirect consequences of conviction; and(c) a determination of whether those consequences are "out of allproportion" to the gravity of the offence.[17] In relation to the first step, the Court of Appeal has confirmed that "whenconsidering the gravity of the offence, the Court should consider all the aggravatingand mitigating factors relating to the offending and the offender".26[18] With regard to the assessment of direct and indirect consequences of convictionon a defendant, the Court of Appeal has stated that:27The 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.[19] This standard "recognises that the Court is assessing the likelihood ofsomething that may happen in the future".28[20] In relation to the final step, the Court of Appeal has affirmed in R v Smyththat:29[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.[21] If the Court is satisfied in terms of s 107 that the consequences of a convictionare out of all proportion to the gravity of the offence, it may then determine whetherit should exercise its discretion to grant a discharge without conviction.3025 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].26 At [27].27 DC (CA47/2013) v R [2013] NZCA 255.28 Prasad v R, above n 24, at [11].29 R v Smyth [2017] NZCA 530.30 Z (CA447/2012) v R, above n 25, at [21]; and R v Hughes, above n 17, at [8]–[12].AnalysisGravity of offending[22] The appellant accepts the characterisation of the offending by the Judge as oflow to moderate severity.[23] I record my agreement with the Judge's assessment of the offending as beingof low to moderate severity for the reasons identified by the Judge and which therespondent has outlined in their submissions.Consequences of conviction[24] As noted, however, the appellant submits that the Judge erred in finding thatthe consequences of conviction were speculative.[25] At the time of sentencing, the appellant was in employment, and counsel forthe appellant argued that a conviction would have consequences were the appellant toapply for a new job. The Judge found it was speculative whether the appellant wouldmove to a new job and even more speculative what the consequences of a convictionwould be if the appellant were to apply for a new job.31[26] In R v Taulapapa, the Court of Appeal stated:32[46] When determining the effects of conviction on employment the courtmust identify the consequence, assess the evidence offered for it, evaluate therisk that the consequence will happen to the particular applicant, and form anoverall assessment of seriousness.[27] The Judge correctly noted that the test for the consequences of a conviction iswhether there is a "real and appreciable risk" that they will happen.33 I am satisfiedthe Judge did not err in finding that the indirect and direct consequences of aconviction on the appellant's employment prospects were speculative. I set out thereasons for my conclusion.31 Decision under appeal, above n 1, at [18].32 R v Taulapapa [2018] NZCA 414.33 Decision under appeal, above n 1, at [18].[28] First, the appellant is currently in employment, and there is no evidence tosuggest that the appellant's current employment is at threat due to a conviction for thepresent offending. As Katz J noted in Taavili v Police, when it comes to gainingemployment, "[a]ll other things being equal, persons without convictions are likely tobe preferred over those who have a criminal record."34 However, the appellant is notin a position of seeking employment currently and is therefore not directly affected inthe way that someone without work might be affected. The choice to change job andto move to other employment would be within the appellant's control and should hechoose to change job, he has the option of waiting until he had secured newemployment before doing so.[29] There is also no evidence that the appellant is enrolled in or planning anyvocational training which might be at jeopardy if he has a conviction against his name.Neither is there evidence of what other kind of employment the appellant may seek inthe future which would be similarly jeopardised.[30] Finally, I note that the appellant's conviction is subject to the Criminal Records(Clean Slate) Act 2004 and will be permanently erased from his criminal record inseven years if he refrains from any further offending. I also do not consider that aconviction for the present offence suggests the appellant's offending was more seriousthan it was in reality. To the extent that there is stigma arising from such a convictionthat is a natural consequence of this type of offending.[31] Overall, there is no evidence before the Court of any "real or appreciable" risksto the detriment of the appellant's possible future.[32] I accept, however, that consequences can be of a more general nature. I turnto consider whether such general consequences make a conviction for this offendingout of all proportion to the gravity of the offending in this case.34 Taavili v Police [2012] NZHC 2323 at [32].Are the consequences of a conviction out of all proportion to the gravity of the offence?[33] Counsel for the appellant cites a number of cases in support of the submissionthat the general consequences of a conviction can sometimes be out of all proportionto the gravity of the offending so as to warrant a discharge without conviction.However, each of the cases cited are distinguishable from the present case and nonesupports that the consequences of a conviction would be out of all proportion in theappellant's case.[34] The appellant relies on the decision in Gaunt v Police, which I accept bearssome similarities to the present case.35 In that case, the Court noted that the "blackmark of a conviction alone is a significant consequence on an otherwise clean record,especially for a young person who does not yet have a foothold in a career."36 TheCourt noted the appellant in that case had expressed his remorse and acknowledged heneeded to be a better father and role model to his daughter. The Court considered thata conviction "would have a detrimental impact on his ability and opportunity to doso."37 The appellant had struggled to find employment, occasionally finding work inmanual occupations, contributed to in part by a disability, namely "severe hearingloss". The Court accepted the conviction would have a generally inhibiting effect onhis employment prospects and allowed the appeal, granting discharge withoutconviction.[35] However, the offending in that case was described by the Court as "veryminor", namely the appellant spitting at his partner in the course of a domestic dispute,such that it barely warranted the intervention of the criminal law.38 That sort ofoffending is considerably removed from that of the appellant in the present case, whichinvolved multiple physical assaults over a protracted period. The gravity of theoffending is substantially higher in this case. Moreover, there was evidence in thatcase that the appellant there had struggled to find work before the assault and the Court35 Gaunt v Police [2017] NZCA 590.36 At [15].37 At [15].38 At [13].accepted a criminal conviction would add to this difficulty.39 That distinguishes itfrom the present case, in which there is no such evidence.[36] As authority for the submission that non-specific consequences could be out ofall proportion to the gravity of the offending, the appellant pointed to the decisions inHamill v Police and Nash v Police, in which the Court considered that although therewas no or little evidence of any specific consequences of conviction, in each case thegeneral consequences of a conviction would be disproportionate to the gravity of theoffending.40 However, in Hamill the offending was "at the bottom end of the rangefor violence" and was a "momentary act".41 In allowing the appeal in that case,Simon France J held that even general consequences were out of all proportion to theoffending but only because the gravity of the offending was so low.42 Similarly, inNash the Court found that the domestic assault in that case was "relatively minor" andvery much at the lower end of the scale of offending.[37] I accept that the authorities stand for a proposition that in certaincircumstances, even general consequences of the entry of a conviction may be out ofall proportion to the gravity of the offending. But as the decisions also show, this islikely to be only where the gravity of the offending is sufficiently low, being "relativelyminor" and "at the bottom end of the range for violence". That is not the situation inthe present case.[38] The appellant raises in support several additional authorities, to similar effect.43However, I accept the respondent's submission that in all of the cases cited, theappellant was either able to point to specific consequences of conviction that were outof all proportion to the gravity of the offending, or the appellant's offending was solow-level that even general consequences of conviction were considered to be out ofall proportion. That contrasts with the present case, where the appellant has notpointed to any consequences of a conviction on employment where there is a real orappreciable risk that the consequence will occur, and where the offending is not of39 At [16].40 Hamill v Police [2015] NZHC 2878; and Nash v Police HC Wellington CRI-2009-485-7, 22 May2009.41 At [12].42 At [13].43 R v Taulapapa, above n 32; Taavili v Police, above n 34; and Albert v R [2017] NZHC 102.such a low level, being, as is accepted by counsel for the appellant, offending of lowto moderate seriousness for this type of offending.[39] The gravity of the offending in this case is such that the general consequencesof a conviction are by no means out of all proportion to the offending. In reaching thisconclusion, I have noted the appellant's youth as well as the submissions as to theconsequences on his mental health. However, there is no evidence to suggest theconsequences of a conviction appear to be any greater than those naturally proceedingfrom a conviction for criminal offending of this nature.Conclusion[40] I am not satisfied that in declining the appellant's application for a dischargewithout conviction, the Judge erred in any material way.Result[41] The appeal is dismissed.Churchman JSolicitors:Crown Solicitor, WellingtonC Sheat, Barrister and Solicitor, Wellington