GILLILAND v NEW ZEALAND POLICE [2019] NZHC 289

GILLILAND v NEW ZEALAND POLICE [2019] NZHC 289 [28 February 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-386[2019] NZHC 289BETWEEN JAMES GILLILANDAppellantAND NEW ZEALAND POLICERespondentHearing: 25 February 2019Counsel: M Dyhrberg QC and K Martellic for AppellantR McCoubrey and H Savage for RespondentJudgment: 28 February 2019JUDGMENT OF CHURCHMAN J[1] The appellant, Mr James Gilliland, pleaded guilty in the Auckland DistrictCourt to one charge of injuring with reckless disregard.1 Following a hearing on17 October 2018, Mr Gilliland's application for discharge without conviction unders 106 of the Sentencing Act 2002 (the Act) was declined by Judge Jelas.2 He wasconvicted and sentenced to 200 hours' community work by Judge Field.[2] Mr Gilliland appeals his conviction and sentence on the basis that Judge Jelaserred in her assessment of whether the consequences of a conviction would be out ofall proportion to the gravity of the offending. Ms Dyhrberg QC, on his behalf, submitsthe gravity of his offending was low and the consequences on him for travel andemployment are out of all proportion to his offending.1 Crimes Act 1961, s 189(2); maximum penalty five year's imprisonment.2 Police v Gilliland [2018] NZDC 22323.[3] The Crown opposes the appeal, submitting that the Judge did not err in herassessment of the s 106 application and her refusal to grant a discharge withoutconviction did not result in a miscarriage of justice.Approach on appeal[4] An appeal against the refusal to grant a discharge without conviction is acomposite appeal against conviction and sentence.3 The basis for determining anappeal against a refusal to grant a discharge without conviction is whether amiscarriage of justice has occurred:4(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 the Act.Background[5] On the morning of 9 May 2018, Mr Gilliland was standing at the intersectionof Ponsonby Road and Picton Street, waiting to cross Picton Street from south to north.The complainant was in her car, waiting at a red traffic light to turn left from PictonStreet onto Ponsonby Road. There was a queue of vehicles behind her.[6] The traffic lights, along with the light for the pedestrian crossing, turned greenat the same time. As she was unable to turn left, the complainant drove her vehicleforward slightly, to allow the queue of vehicles behind her to pass while still givingway to pedestrians.[7] Mr Gilliland approached the complainant's vehicle, kicking the frontpassenger door. When the complainant asked why he had done that, he replied thatthere were pedestrians crossing.3 Jackson v R [2016] NZCA 627 at [6]-[16].4 At [12].[8] Once the pedestrians had finished crossing, the complainant turned left andparked her vehicle close to the intersection. She got out to check if there was anydamage.[9] Mr Gilliland was still standing at the intersection. The complainant told himthat she was only moving forward to allow the traffic behind her to pass. As she wasspeaking to him, Mr Gilliland came towards her, put both his hands on her shouldersand pushed her over.[10] Due to the force of the push, the complainant fell backwards onto the concretefootpath, landing on her right wrist. She broke her right wrist in four places.[11] After pushing the complainant, Mr Gilliland ran off and was caught a shortdistance away by members of the public who had witnessed the incident. I note that,in his statements to the Police and Dr Joseph, the appellant claimed he "walked" away.Those statements are inconsistent with the other evidence and with the contents of theagreed statement of facts which records him as having run away, and I therefore donot accept them. It is also clear that he showed no concern for the victim whom hewould have observed to have fallen heavily onto the concrete footpath as a direct resultof his actions. He made no attempt to render any form of assistance.District Court decision[12] The Judge noted that the complainant's injury was serious and the offendingaffected her greatly.5 While Mr Gilliland submitted that he had acted out of a genuineconcern for pedestrian safety, having himself suffered a significant accident whileriding his bicycle in 2016, the Judge did not consider his heightened sensitivity todriver error to be of any significant relevance.6 She determined, rather, that "the morelikely explanation for the offending was Mr Gilliland's aggressive demeanour at thetime".7[13] The Judge stated:5 Police v Gilliland, above n 2 at [12].6 At [13]-[15].7 At [19].[20] The Court cannot lose sight of the fact that at the time of the offence,the victim was not driving her car, there had been no driver error, she hadprovided a reasonable explanation to Mr Gilliland for why she had driven hervehicle forward and Mr Gilliland's response was to push the victim to theground. His actions were entirely unprovoked.[14] The Judge did not find Mr Gilliland's submissions that he did not intend to hurtthe victim to be relevant as intention to harm is not an element of this offence, nor didshe accept his submission that the consequential harm to the victim wasdisproportionate to the force applied.8[15] The Judge did, however, state that the assessment of gravity requiresconsideration of other factors beyond the direct circumstances of the offence itself,noting Mr Gilliland's age, his lack of previous criminal history, his early acceptableof responsibility and his remorse.9[16] In terms of the gravity of the offending, the Judge concluded:[28] I have concluded the gravity of the offending is moderately serious,having regard to all factors discussed in the paragraphs above. This was anunprovoked aggressive response resulting in a serious injury to the victim.While the defendant has taken full responsibility for his actions, is in theprocess of examining contributing factors to the offending and is deeplyremorseful for his acts, that does not, in my view, reduce the offending to sucha level that it can be described as "low-level".[17] As to the consequences of a conviction, the Judge said:[45] From the information filed, I conclude the consequences of aconviction for Mr Gilliland will be that, at some future date, he will need toseek a visa to travel and the outcome of that process will be unknown until theresult is received. However, I do not anticipate Mr Gilliland will be barredfrom entry to all countries.[46] Mr Gilliland may also be disadvantaged with future job applicationsbut again I do not accept the opportunities for advancement will be prohibitedby a conviction.[18] The Judge determined that the consequences of the conviction were not out ofproportion to the gravity of the offending and the test set out in s 107 had not beensatisfied.108 At [21]-[22].9 At [23].10 At [50].Appellant's contentions[19] In both her written and oral submissions, Ms Dyhrberg developed at length asubmission as to why it was alleged Judge Jelas was wrong to conclude that the offencewas moderately serious. A principal plank of the argument was that:Mr Gilliland's actions brought about a consequence disproportionate to theforce applied, and the facts clearly disclose and [sic] element of misfortunefor all involved It is submitted that serious injuries were at the very outerlimit of what could have been reasonably anticipated.[20] Further examples of this submission were: " the remoteness of theconsequence must tend to lower the sense in which Mr Gilliland is ultimatelyblameworthy." And: " it will be highly unusual that a push, however forceful, willbring about such a serious result as occurred in this case."[21] These submissions are wholly unrealistic.[22] As Judge Jelas correctly noted, the Courts regularly have to deal with situationswhere someone pushed over on a concrete surface has sustained serious physicalinjuries as a result.[23] Far from it being "highly unusual" that a push of this nature would causeserious injury, the appellant is fortunate that even more serious injuries were notcaused. Had the victim not been able to break her fall by putting her arm out, it isentirely possible that her head may have struck the concrete footpath first with direconsequences. To suggest that the injuries that were sustained "were at the very outerlimit of what could have been reasonably anticipated" is untenable.[24] There were other aspects of the submissions made on behalf of the appellantwhere the facts were presented in a way that was unrealistic. The written submissionsincluded a passage which said:There is no reason to doubt that the catalysing incident was borne of genuineconcern for the pedestrians crossing Ponsonby Road, however misguided.The phasing of the lights brings left turning traffic into the path of foot-traffic,and it could have been reasonably misunderstood that [the complainant] hadnot seen the pedestrians and was accelerating towards them.[25] The notion that the complainant was "accelerating" towards anyone is fanciful.The appellant himself acknowledged in his affirmation of 10 December 2018 that thecomplainant was "creeping forward". The Judge said:11There is no suggestion in the summary that, at any stage, the victim drove hervehicle in a manner that breached any road rule. Neither is there a suggestionthat any pedestrian was in danger or that any pedestrian was concerned by thevictim's acts.[26] Those observations were fully justified.[27] Counsel for the appellant submitted that the Judge had misunderstood thesubmission made to her about the effect of the appellant's "Traumatic ReactivityCondition".[28] Judge Jelas has specifically rejected this matter as being of "any significantrelevance to the gravity assessment."12 She went on to set out a number of reasons forthat conclusion.[29] Ms Dyhrberg's written submissions said:While the evidence does not go as far as to establish a causative nexus betweenMr Gilliland's condition and his offending, it can fairly be inferred that, insome measure, there is likely to have been a mediating relationship betweenthe condition and his behaviour.[30] The submission goes on to explain that the word "mediating" is synonymouswith the concept of "caused by". The submission specifically states:The Court of Appeal has accepted where offending is mediated (cf. caused by)a mental health condition, this will imply a lesser graduation of culpabilitythat is appropriately reflected in a credit against sentence.[31] In implying that there was such a condition here, counsel goes further than thepsychiatrist Dr Joseph did in his report.[32] Judge Jelas accurately stated:11 Police v Gilliland, above n 2 at [7].12 At [15].[18] Dr Joseph does not identify any singular cause for Mr Gilliland'soffending. While Mr Gilliland's heightened sensitivity to driver error is noted,other financial and relationship stresses were also listed in the report. Frommy reading of Dr Joseph's report, it was not Dr Joseph's intention to suggestthe cause of the offending was due to Mr Gilliland's perception of driver error.Dr Joseph had merely recorded in his report the explanation Mr Gillilandprovided to him.[33] Counsel submitted: "As to the causation nexus, Mr Gilliland did not submitthat the "traumatic reactivity" caused his offending, but rather that it was acontributory factor".[34] As Judge Jelas noted, it is difficult to ascribe sensitivity to driver error as beinga contributing factor in his case given that there was no driver error. Nor, on anyobjective basis, any reasonable grounds for assuming driver error.[35] In any event, while it is possible to understand why a misguided apprehensionof danger to pedestrians might have been a contributory factor to the appellant kickingthe complainant's vehicle, it is much less obvious how that could still be said to be anoperative factor once there was clearly no longer any potential danger to a pedestrian,the complainant being out on the footpath inspecting her parked vehicle for damage.[36] I am unable to identify any error made by Judge in not accepting thesubmission that heightened sensitivity to driver errors was a contributing factor to theactual assault.[37] On the question of the gravity of the offending, the written submissions ofcounsel stated: "Finally, there is no sense in which Mr Gilliland is a person disposedto aggression or "road-rage", or that he poses a risk to others".[38] This submission contradicts the appellant's own statements.[39] In his affirmation of 10 October 2018, the appellant says:However, I have found myself aggravated by traffic many times. On the daybefore the accident, I had to dodge heavy traffic on Newtown Road to sidesteparound a large truck that had stopped in the middle of the pedestrian crossingat the lights. I managed to stay calm during this encounter but I think it addedto my aggravated disposition on the day of the offending.[40] In the same affirmation, the appellant notes that when the complainantexplained why she had moved forward slightly at the intersection, this "angered [him]further".[41] The report from Dr Joseph tabled in support of the appeal also confirmed thatthe appellant is indeed someone who is disposed to aggression and becomes enragedby perceived traffic offences. The relevant passage in the report says:People who commit traffic mistakes easily annoy him. He has bought a dashcam and has sent recordings of bad driving to the police. He has also used hisphone to make recordings. He has honked at the offenders and has got intoconfrontation a few times.[42] Therefore, I cannot accept the submission that "there is no sense in whichMr Gilliland is a person disposed to aggression or 'road rage'". It follows that I canalso not accept the submission that the appellant "is not a person who requires specificdeterrence to avoid confrontations in future".Relevant law[43] Section 106 of the Act provides that if a person who is charged with an offenceis found or pleads guilty, the court "may discharge the offender without conviction,unless by any enactment applicable to the offence the court is required to impose aminimum sentence".[44] 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.[45] As stated by the Court of Appeal in R v Hughes, s 107 "provides a gatewaythrough which any discharge without conviction must pass".13 The Court noted thatsuch an appeal is not an appeal against the discretion of the Court:1413 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].14 At [11] (citation omitted).[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.[46] The approach to be adopted by an appeal court in relation to s 107 has beensummarised as:15[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.[47] More recently, the Court of Appeal, speaking of the s 107 test, said:16[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, taking intoaccount all aggravating and mitigating factors of the offending and theoffender;(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.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.[48] In terms of the gravity of the offence, the Court of Appeal has summarised thecorrect approach to take as follows:1715 Denden v Police [2014] NZHC 1814 (citations omitted).16 Prasad v R [2018] NZCA 537 (citations omitted).17 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27] (citation omitted).[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).[49] When considering the direct and indirect consequences of conviction on adefendant, the Court of Appeal stated that:18The 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.[50] The Court of Appeal recently confirmed in R v Smyth that: 19[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.[51] Once the Court is satisfied the disproportionality test has been met pursuant tos 107, it may then determine whether to order the discharge.20Gravity of the offendingFactors relating to the offending[52] The Crown submits the aggravating factors of the offending are the push to theshoulders (with two hands) and the injuries to the victim. Further aggravating featuresare said to be Mr Gilliland's behaviour in kicking the complainant's car and the injuryto the complainant.[53] Ms Dyhrberg, for Mr Gilliland, submits that the assault lacked any intent tohurt or cause a fall, implying a lesser degree of recklessness in relation to thedownstream consequences of applying force. In Hepi v Police, which concerned acharge of wounding with reckless disregard, Brewer J recognised an obvious18 DC (CA47/2013) v R [2013] NZCA 255 at [43] (citation omitted).19 R v Smyth [2017] NZCA 530.20 Z (CA447/12) v R, above n 17 at [21]; R v Hughes, above n 13 at [8]-[12].correlation between the degree of recklessness involved and the culpability of theoffender:21The gravamen of a charge of wounding with reckless disregard to the safetyof others is that the offender must be taken to have had an actual and consciousappreciation of the danger of her actions to the safety of others and with thatactual and conscious appreciation proceeded with her actions regardless of therisk to the safety of others. Therefore, I have to approach this appeal on thebasis that the appellant did not have an actual intention to wound her partner.[54] As noted above, Ms Dyhrberg submits that Mr Gilliland's actions broughtabout a consequence disproportionate to the force applied and the remoteness of thisconsequence should lower the extent to which he is held to be blameworthy.[55] For the reasons set out in [19]-[23] above, I do not accept this submission. Theconsequence of Mr Gilliland's actions was not remote. The force of the push byMr Gilliland caused the victim to fall. He pushed her with both hands. It is almostinevitable that pushing someone over this way on a hard surface will result in themputting their hand out to break the fall, thus causing an injury of precisely this nature.Factors relating to the offender[56] Ms Dyhrberg submits that the mitigating factors personal to Mr Gilliland areas follows:(a) he pleaded guilty at an early opportunity, having already madeadmissions to the police;22(b) he expressed remorse in his affirmation, explaining that he wanted toapologise to the complainant in person but understood that she did notwant to participate in restorative justice, and his remorse was acceptedby the Judge;2321 Hepi v Police [2013] NZHC 2690 at [12].22 Sentencing Act, s 9(2)(b).23 Section 9(2)(f).(c) he was the victim of a serious accident while riding his bike to work in2016, sustaining broken teeth, grazing, a laceration to his lip, andbruising;24(d) he has no previous convictions and has tendered several referencesattesting to his character;25(e) he has engaged a counsellor to help him confront the trauma from hisprevious accident and to develop strategies to cope with stress infuture;26(f) he is at low risk of re-offending;27(g) due to the complainant's occupation, the media seized on this case,notwithstanding that the offending itself was ultimately unremarkableand entirely unrelated to her occupation, and this media coverage hasbeen an adverse consequence.28[57] The Crown, while acknowledging that Mr Gilliland is remorseful, of previousgood character, has accepted responsibility and engaged in counselling, submits thatwhen the offending is considered as a whole, the Judge was correct to conclude thathis personal circumstances did not reduce the offending to a low level, particularlygiven the injury caused. This was still moderately serious offending that involved anunprovoked and forceful push and aggressive behaviour.Conclusion on gravity of offending[58] Ms Dyhrberg further submits that the modest penalty of 200 hours' communitywork is also a factor indicating a low level of culpability, demonstrating that JudgeJelas, in describing the offending as "moderately serious", overstated the gravity ofthe offending. She brings to the Court's attention a number of cases in which s 10624 Sections 9(2)(e) and/or 9(4).25 Section 9(2)(g).26 Section 10(1)(c).27 Section 9(4).28 Section 9(4).orders have been made out in what she submits are significantly more serious cases.29However, those cases are highly fact dependent and, while discharge withoutconviction may have been warranted in those cases, it does not follow that should bethe case here.[59] During her oral submissions, Ms Dyhrberg referred extensively to the case ofR v Taulapapa.30 In particular, it was submitted that this case was authority for theproposition that even when a charge is very serious (Ms Taulapapa pleaded guilty tocharges of burglary and kidnapping), the Court was still able to consider a dischargewithout conviction. As a general proposition, that is undoubtedly correct.31[60] But even though the charges in Taulapapa were serious, it was the actual partplayed by the defendant that was critical. The defendant was described in thejudgment as being an 18-year-old who was immature for her age and who was the"dupe" of the principal offender. The Court of Appeal said that "her culpability wasmuch lower than the convictions alone would suggest".32[61] In addition to the defendant's youth, her immaturity, and her peculiarsusceptibility to direction and control by the principal offender, there were also"cultural influences" identified by both the High Court and Court of Appeal whichimpacted directly on the question of culpability. The Court also held that there was noneed for denunciation and deterrence given the particular features of this case.33[62] Beyond confirming that the seriousness of a charge is not, of itself, a bar to theapplication of s 106, the decision in Taulapapa is of little assistance in the present casebecause most of the features that the Court in that case found to be significant areabsent in the present case.29 Curtis v Police HC Auckland CRI-2009-404-23, 2 June 2009; McDonnell v Police [2012]NZHC 2480; Puriri v Police [2018] NZHC 1682.30 R v Taulapapa [2018] NZCA 414.31 See, for example, Curtis v Police, above n 29; Haukinima v Police HC Auckland CRI-2006-404-344, 11 July 2007; Manning v Police HC Christchurch CRI-2006-409-202, 29 November 2006.32 Above n 30 at [59].33 At [32].[63] It is my view that the consequences of his actions in pushing the complainantcannot be said to be remote but were, rather, almost inevitable. This was anunprovoked assault on a woman nearly twice the appellant's age which caused herserious injury. The fact that he may have a heightened sensitivity to traffic offendingin no way mitigates his offending as she had not committed any driving error. Whileit is to Mr Gilliland's credit that he accepted responsibility for his offending, pleadingearly, expressing remorse and engaging in counselling, I share the Judge's view thatthis was, nevertheless, moderately serious offendingConsequences of a conviction[64] Randerson J in Iosefa v Police described the correct approach to assessing theconsequences of conviction as follows:34[I]t is not necessary for the Court to be satisfied that the identified direct andindirect consequences would inevitably or probably occur. It is sufficient ifthe Court is satisfied there is a real and appreciable risk that suchconsequences would occur.[65] He continued:35However, the nature and seriousness of the consequences and the degree oflikelihood of their occurring will be material to the Court's assessment ofwhether those consequences would be out of all proportion to the gravity ofthe offence.[66] Ms Dyhrberg points to two real and appreciable indirect consequencesMr Gilliland will face as a result of a conviction:(a) that he will be prejudiced in travelling for the purposes of his currentemployment; and(b) that he will be prejudiced when attempting to transition into futurepositions of employment.34 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34]; affirmed in DC v R[2013] NZCA 255 at [43].35 At [35].[67] The Crown, however, submits that Mr Gilliland will not be prevented fromtravelling for work and, in any event, his work or travel plans are largely speculative.Further, it is submitted a conviction will not be a bar to future employment or careerprospects. While it is accepted there may be additional difficulties in travelling orfuture employment, the Crown submits that these are natural and ordinaryconsequences anyone would expect to flow from this type of offending.Ability to travel[68] Mr Gilliland currently works as a software developer for Gentrack, a large,international IT company. Gentrack maintains offices in Australia, Singapore andEngland, with employees frequently taking up overseas postings to assist with theexpansion of the business. Mr Gilliland also sub-contracts for Vospertron and haspreviously worked for them on projects in Dubai and Australia. In 2019, Mr Gillilandwill be required to travel to Qatar and India for Vospertron.[69] Ms Dyhrberg submits that information technology is an internationallyorientated industry in which overseas briefs are commonplace and Mr Gilliland hasexpressed a future ambition to develop his skills by seeking employment in a countrywith a strong software development industry such as Canada, the USA or Germany.[70] In assessing the consequences of conviction on a person's ability to travel, thecourts generally require detailed and reliable evidence of:36(a) a requirement to disclose the conviction but (assuming the discharge isgiven) not the fact of the offending;(b) being inadmissible to the jurisdiction as a result of the conviction andhow long for; and(c) the lack of any alternative entry processes or, if alternatives exist, whysuch processes would be unreasonable, difficult and uncertain.36 Edwards v R [2015] NZCA 583 at [26].[71] A discharge will not ordinarily be appropriate for speculative travel plans, withthe Court in Brunton v Police noting:37The Courts have held on numerous occasions that tentative future travel planscarry little weight in a s 107 context. Potential problems with travel overseashave often been seen as a universal consequence, and unless real evidence canbe shown that a conviction would impede entry into another country, suchspeculative consequences will not form the basis for a discharge withoutconviction.[72] Ms Dyhrberg points to a number of cases in which discharges withoutconvictions were granted on the basis of risks to travel prospects.38 She briefedMs Cottrell, a barrister and solicitor practicing in immigration law, who provided anaffidavit outlining the effect a conviction would have on Mr Gilliland's ability to travelfreely for vocational purposes. In her affidavit, Ms Cottrell explains that, generally,entry of a conviction will mean that Mr Gilliland will need to apply for visas tocountries that he can currently travel to without a visa on a reciprocal waiver scheme.She concluded that "the likely consequences of a conviction will be ongoing andsignificant", with Mr Gilliland required to declare his conviction in some instances.She stated that he would likely be ineligible to apply for a visa to some countries andwould need to make an application for a waiver of the character requirements, aprocess which is complicated and time consuming, with no guarantee that a visa wouldbe granted.[73] The Crown accepts that Mr Gilliland will likely be required to travel to Qatarand India for his employment with Vospertron but states that a conviction will notprevent him from travelling to these jurisdictions for short periods of time. As theJudge noted, the appellant can:(a) travel to Qatar for up to 30 days without a visa; and(b) travel to India with an E-visa for up to 60 days without providing apolice certificate.37 Brunton v Police [2012] NZHC 1197 at [16].38 Vela v R [2010] NZCA 440; Merrie v Ministry of Economic Development HC Rotorua CRI-2006-470-22, 25 September 2006; T v Police [2012] NZHC 1426; Boonen v Police HC Wellington CRI-2003-485-41, 14 October 2003; Evans v Police HC Wellington CRI-2009-485-97, 6 November2009.[74] As to Mr Gilliland wanting to travel for work with Gentrack, the Crownsubmits this is largely speculative. Although he is encouraged to work overseas, thereis no set plan or requirement for him to do so. The length of any travel is alsouncertain, making it difficult to determine whether the appellant would have to applyfor a visa in any event. The Crown emphasises there is no risk to Mr Gilliland's currentemployment with Gentrack and that he has not travelled overseas for this job to date.In terms of future employment, the Crown submits that the Judge was right to concludethat such benefits are general and apply to all persons who work and travel offshore.There is nothing to suggest Mr Gilliland requires overseas experience or that he willlose out on employment without it.[75] In any event, the Crown submits that a conviction is not an absoluteimpediment to Mr Gilliland's travel as he will still be able to apply for visas and/orcharacter waivers, with immigration officials being appropriately placed to determinesuch applications. In Banerjee v Police, Palmer J commented:39The immigration authorities are able to assess the offending for what it is, withreference to Judge Manuel's comments, and now mine, about its relative lackof seriousness. Accordingly, I do not consider the conviction itself has had,or has, a consequence out of proportion to the offending.[76] The Crown submits that, here, the sentence of 200 hours' community work willprovide an effective signal that Mr Gilliland's offending was not at the highest levelof seriousness.[77] Ms Dyhrberg, however, submits there is an inherent risk that a conviction forinjuring with reckless disregard would likely adversely bear on the exercise ofdiscretion. Injuring is an intrinsically serious offence and the conviction would alsobe relatively fresh, the passage of time not yet having had the potential effect ofsoftening the effect of its entry. Although the Crown has submitted that it is unlikelythat Mr Gilliland would be denied entry, and it is accepted that the Court is entitled toweigh the likelihood of an adverse consequence occurring, the overarching questionis submitted to be whether an adverse consequence is a "real and appreciable risk",not whether there is a possibility of a favourable outcome. Visa applications will39 Banerjee v Police [2018] NZHC 2446 at [29].involve Mr Gilliland in protracted and potentially expensive processes with noguarantee of outcome, creating intolerable uncertainty for Mr Gilliland and hisemployers, both future and prospective, meaning that working overseas would becomepractically and commercially unviable. This could put a strain on Mr Gilliland'semployment arrangements.Future employment prospects and career[78] Ms Dyhrberg submits there is an inherent risk Mr Gilliland will be seriouslydisadvantaged in future employment with a conviction. The Judge accepted aconviction would create a disadvantage for him but noted he has current workexperience, supportive employers and prospects for advancement.40 Ms Dyhrbergsubmits, however, that Mr Gilliland has been studying for a long time and onlyrecently took up employment in his chosen field. It is unlikely that any prospectiveemployer will attempt to go behind the fact of the conviction and to understand thefacts underpinning the offending. Even if the opportunity to explain is given, there isalways a risk that the explanation will be treated as self-serving and suspect. As theCourt of Appeal noted in Brown v R, it is unrealistic to expect prospective employersto have the time or inclination to embark on nuanced analyses of the culpability of pastoffending.41[79] The Crown accepts there are general consequences to career opportunities inhaving a conviction. Although Mr Gilliland will be applying for employment incompetition with others who do not have a conviction, he has current work experience(spanning past the date of his conviction) and supportive employers which will berelevant to any future employer's decision. It is submitted that these circumstancesmake it less likely Mr Gilliland will be ruled out of future employment withoutconsideration of his merits and previous good character, and the likelihood of therebeing a real and appreciable risk to his future career opportunities is minimised as aresult. To the extent there is still a risk present in future employment, the Crownsubmits this is also an ordinary consequence of his conviction.40 Above n 2 at [44].41 Brown v R [2012] NZCA 197 at [31]-[32].Conclusion on consequences of a conviction[80] It is my view that there is a real and appreciable risk that G's ability to travelwill be compromised by this conviction. It is true that he will not necessarily beprevented from travelling to all countries, but he is likely to encounter difficulties ingetting permission to enter a not insignificant number of countries. For a person inhis particular line of work, this is likely to limit his opportunities for professionaladvancement. That his work currently involves some travel cannot be said to bespeculative, given his plans this year to go to India and Qatar. That he may,nevertheless, still be able to travel to these specific countries despite his conviction isa matter of luck. Future travel of a similar nature might require that he visit countrieswith stricter entry requirements.[81] As to his career, I again find there is a real risk that his prospects will beaffected. While he is currently in employment in his chosen field and his employersremain supportive, should Mr Gilliland at some point in the future wish to apply for aposition with another company, he may be required to disclose any previousconvictions. There is an appreciable risk that an employer, particularly in a professionwhere applicants having a conviction history will be a rarity, will be reluctant to takeon an employee with a criminal conviction. When combined with the fact thatMr Gilliland will potentially face difficulties in travelling, there is a possibility thatany employer in his industry will think twice before employing him.Proportionality[82] Ms Dyhrberg submits that the real and appreciable consequences attendant onconviction would be out of all proportion to the gravity of the offending. In substance,an isolated mistake, leading to what she submits can fairly be described as a "freakaccident", could significantly jeopardise the future prospects of an otherwise decentyoung man. The offending is not of a nature that legitimately inspires public concernand there is no sense in which Mr Gilliland requires specific deterrence. There is nopublic or private utility in entering a conviction and to do so could be positivelyretrograde.[83] The Crown submits that it is not enough that the consequence of a convictionoutweighs the gravity of the offending. Significantly more is required. Theconsequence must be out of all proportion to the gravity of the offending before theCourt has jurisdiction to grant a discharge without conviction.42 The consequences ofa conviction for Mr Gilliland, it is submitted, are not out of all proportion to the gravityof his offending. While it is acknowledged that a conviction may well have somenegative consequence for him, these consequences are not extraordinary, and there isnothing unique about his circumstances that would justify a discharge withoutconviction.[84] As I concluded above, there is an appreciable risk that a conviction of thisnature will negatively impact on Mr Gilliland's future career prospects, both in termsof the difficulties he may face in travelling and a likely reluctance on the part ofemployers to take on someone with a criminal conviction.[85] However, s 107 requires the Court to undertake a balancing exercise. This iswhere the categorisation of the gravity of the offending as to whether it is moderatelyserious as the Judge found, or "low level" as submitted by the appellant, is of criticalsignificance. For the reasons set out above, I am satisfied that Judge Jelas did notmake an error in categorising the offence as moderately serious.[86] Turning to whether the Judge erred in finding that the consequences of aconviction for Mr Gilliland would be out of all proportion to the gravity of theoffending, the consequences principally relied upon, namely the effect on possiblefuture employment, and on work and recreational travel, could be said to be ordinaryconsequences of a conviction for this type of offending.[87] As the Court of Appeal said in Taulapapa: "[T]he ordinary consequence ofconviction are [sic] unlikely to be out of all proportion to the gravity of a youngperson's offending".4342 R v Smyth, above n 19 at [12].43 Above n 30 at [38].[88] Unlike the defendant in Taulapapa who had not yet obtained educationalqualifications or employment in any particular field of endeavour, Mr Gilliland hasobtained qualifications in his chosen field and is already in employment. He isfortunate to have the support of both his employers, and there is no suggestion that theconsequences of the conviction mean that he is likely to lose his employment.[89] For some countries, Mr Gilliland will now need to go through the time-consuming process of applying for a visa and, for other countries, will have to applyfor a visa if he wishes to undertake a lengthy stay in those countries. This willundoubtedly be inconvenient for him and possibly for his employers, too. It is alsopossible that, when assessing the visa application, some countries may make anadverse decision as to his character. However, in respect of such a process,Mr Gilliland will be able to utilise the decisions of both the District Court and the HighCourt in this matter to assist in placing the offence in perspective. It is also noted thatfor countries such as the United States, even if there was a discharge withoutconviction, Mr Gilliland would be obliged to disclose his arrest.[90] While the appellant's actions can properly be described as an isolated event, Ido not accept the characterisation urged upon me that they were a "freak accident".The injuries sustained by the complainant were a readily foreseeable result of her beingpushed backwards on both shoulders by a young man half her age.[91] Overall, I am not satisfied that Judge Jelas made any error in concluding thatthe consequences of a conviction were not out of all proportion to the gravity ofoffending.Conclusion[92] For the reasons given above, this appeal is dismissed.Churchman JSolicitors:Crown Solicitor, Auckland for Respondentcc M Dyhrberg QC