CAMPBELL v NEW ZEALAND POLICE [2021] NZHC 1377

CAMPBELL v NEW ZEALAND POLICE [2021] NZHC 1377 [10 June 2021]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2021-419-26[2021] NZHC 1377BETWEEN JAMIE DOUGLAS CAMPBELLAppellantAND NEW ZEALAND POLICERespondentHearing: 10 June 2021Appearances: S A McKenna and J A Heinstman for the appellantB B Harris for the respondentDate of judgment: 10 June 2021ORAL JUDGMENT OF JAGOSE JSolicitors:McKenna King Limited, HamiltonHamilton Legal, Hamilton[1] Jamie Douglas Campbell pleaded guilty to a category 3 offence, being anassault on his then partner.1 He now appeals against Judge S R Clark's 1 April 2021decision in the District Court at Hamilton2 to refuse to grant him a discharge withoutconviction.3Background[2] Mr Campbell pleaded guilty to assaulting his former partner, with whom hehas a child (and each have a child from previous relationships). All lived together. Athome on 1 June 2020, a verbal argument between the adults escalated. Mr Campbelldamaged an internal door and, when his partner said she was going to call police, "atworst" is said to have grabbed her in the presence of "some children" in a "bear stylehug" from which she struggled, to "wrench" her cellphone from her.Judgment under appeal[3] Mr Campbell was entitled to be discharged without conviction only if the directand indirect consequences of his conviction were out of all proportion to the gravityof the offence.4 Only then may the sentencing judge decide if to exercise residualdiscretion. There must be a "real and appreciable" risk any given consequence willarise; this recognises the court is assessing future likelihood.5 The proportionality testis a question of fact requiring judicial assessment.6[4] In the District Court, Judge Clark recited the events giving rise to the chargeMr Campbell faced,7 noting, while Mr Campbell had some previous convictions, nonerelated to the instant charge.8 The judge assessed the gravity of the offending as low.9He considered the charge and conviction would not establish any substantial barrier to1 Crimes Act 1961, s 194A.2 New Zealand Police v Campbell [2021] NZDC 6005.3 Sentencing Act 2002, s 106.4 Sentencing Act, ss 106–107; and Scott v R [2019] NZCA 261 at [78]–[80], citing Prasad v R[2018] NZCA 537 at [11].5 DC (CA47/2013) v R [2013] NZCA 255 at [43].6 Dickins v R [2012] NZCA 265 at [14], citing H (CA680/2011) v R [2012] NZCA 198 at [30] (citingR v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11], citing R v Rajamani [2007] NZSC 68,[2008] 1 NZLR 723 at [5]).7 New Zealand Police v Campbell, above n 2, at [1]–[3].8 At [4].9 At [6]–[9].Mr Campbell achieving an international refereeing grade status in water polo,10 withwhich he expected to travel internationally at least once or twice per year.11[5] With reference to appellate authority,12 the judge took the view the risks to thattravel were speculative.13 The judge was not persuaded there was evidence before himof a real and appreciable risk Mr Campbell would be prevented from travellinginternationally if refused a discharge from conviction. He therefore declined thatapplication, convicting and discharging Mr Campbell.14[6] For Mr Campbell, Scott McKenna argues the judge too lightly weighed theimmigration consequences flowing from conviction on a charge of assault on a personin a family relationship. He says Mr Campbell's employment prospects as an Olympicreferee also directly are at issue, assuming he obtains such qualification, even if hewas able to gain admission to the relevant foreign countries.Discussion[7] A three-step analysis — the gravity of the offending; the direct and indirectconsequences of a conviction; and if those consequences are out of all proportion tothe gravity — is required.15 That is how the judge conducted his analysis.—gravity of offending[8] Assessing the gravity of the offending requires consideration of aggravatingand mitigating factors relating to both the offending and the offender.16 This is anevaluative, highly fact-dependent exercise.17[9] Family violence offending inherently is serious. It is exacerbated here byMr Campbell's attempt to prevent his former partner from communicating with the10 At [10]–[11].11 At [12].12 At [15]–[16], citing Edwards v R [2015] NZCA 583 at [26]–[27].13 At [19]–[21].14 At [22]–[24].15 Sentencing Act, s 107; Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8]; R v Hughes,above n 6, at [16]–[17]; and Scott v R, above n 4, at [79].16 Rahim v R [2018] NZCA 182 at [15]; Z (CA447/2012) v R, above n 15, at [27]; DC (CA47/2013)v R, above n 5, at [35]; and Waine v R [2017] NZCA 287 at [21].17 Rahim v R, above n 16, at [16].police. But, within the spectrum of family violence, Mr Campbell's offending istoward the lower end, and mitigated by Mr Campbell's guilty pleas, remorse andrehabilitation, and lack of relevant history. I recognise he and his former partner areworking toward reconciliation. The judge was right to conclude the gravity of theoffending was low.—consequences of conviction[10] I do not doubt Mr Campbell's conviction will have consequences for him, andpossibly in relation to either or both his employability as an Olympic referee, and inadmission to foreign countries to exercise it. But consequences are conviction's point,and those relied on for discharge here only are speculative. Employment or traveldisqualifications should convincingly be evidenced, and that is not established on thematerial proffered by counsel. Again, the judge was right.—proportionality assessment[11] Accepting the gravity of Mr Campbell's offending is low, I have little materialon its consequences to weigh against it, and certainly nothing as may be thought torender them wholly disproportionate. Where actual consequences turn on a thirdparty's assessment of the relevant facts, and there is no reason to think that assessmentwould be otherwise than made in good faith, the better approach is to leave theassessment for that party than for this Court to avoid those decisions by discharge.18That very much is the case here, if Mr Campbell's most recent conviction additionallyis, or is required, to be disclosed to decision-makers. This is not one of those "rarecases" where decision-makers' scrutiny itself is of qualifying disproportionality.19 Thejudge did not err.Result[12] The appeal is dismissed.—Jagose J18 R v Taulapapa [2018] NZCA 414; and Ho v R [2016] NZCA 229.19 Zhang v Police [2018] NZHC 285 at [32]. See also George v Police [2014] NZHC 1725 at [46].